RSS Feed

Monthly Archives: April 2012

“Returning home from care” – an analysis of the NSPCC research on rehabilitation of looked after children

The NSPCC have published their research into outcomes for looked after children who are rehabilitated to the care of their parents. The report can be found here: -

Their big headline figure is that over 70% of the children in that situation they surveyed said that they weren’t ready to go home.

That initially made me blink, and wonder why the children had said that to the NSPCC but hadn’t said it to their Guardians, but then I realised that the pool of children concerned were probably the older children who were going home from s20 care rather than care proceedings.

There are still some startling figures in the report, however. In 2011, 90,000 children were looked after in England. 39% returned home (about 10,000 children, compared to the 3,050 who were adopted) Of the children who return home, between a third and a half come back into local authority care because the rehab breaks down, and around half suffer further abuse at home.

The NSPCC suggest that variance in Local Authority practice plays more of a part in whether a child is rehabilitated and whether that rehabilitation is successful than the child’s needs.

The report is quite critical of whether the family Courts have skewed the protection of children as against parental rights and article 6 too much in favour of parents.

“For children on care orders, family courts play a central role in assessing whether a child should return home. Their involvement can lead to improved planning and service provision26. However, courts have been shown to favour parents’ rights over those of the child27,28. Interviewees told the NSPCC that courts often instructed reunification, even when it was not in the best interests of the child, with decision making tipped in favour of the parents rather than the child.”

The tiny footnote there is referring to the Farmer research published in 2011, which is also worth a read.

The NSPCC recommendation in this regard is :-

Action must be taken to ensure that court decisions are always based on the child’s best interests. The new Family Justice Service must ensure that members of the judiciary specialising in family law receive training in child development and the implications of returning home from care. Information made available to the courts must enable members of the judiciary to receive better feedback on the outcome of their decisions.

To an extent, this strikes a chord with the Justice Ryder modernisation campaign, with its suggestion that the Family justice system should commission and take notice of some agreed research, rather than operating in a vacuum. I have to say, that for many years, my default reaction to seeing research quoted in a social work report is to reach for the red pen (or now, the ‘strikethrough’ button) as I know how unpopular it can be with the bench or judiciary to have a lot of research spouted to them -it tends to be either a statement of the bleeding obvious, in which case, why bother, or something which supports a proposition which is controversial (such as – the odds are that this child you’re thinking of sending home is 50-50 to suffer abuse at home as a result, or having five sessions of contact with a parent per week isn’t actually good for a baby) in which case nobody trusts it.

But you know, if all of the time and money we spend in trying to reach the right outcomes for children is resulting in half of the children we send home after that exhaustive process being abused, then we might want to recalibrate.

(of course, from the other side of the coin,  there’s something of a paucity of research as to the number of children who get long-term fostered or adopted when the Court and professionals were wrong and they could  successfully have gone home – that’s probably a harder piece of research to work out – probably working on the parents who go onto have another child and successfully care for that later child)

It is a bit hard to totally trust research commissioned by the NSPCC – I’m not questioning their integrity in the slightest, but when it comes down to working out where they stand on the “Keep children safe at all costs” versus “keep families together at all costs” spectrum (or the Cleveland-Haringey axis, if one is being unkind) it doesn’t take long to spot that they come with an agenda.

(Not necessarily a bad agenda – I wouldn’t claim to be precisely on the fulcrum of that particular see-saw myself – but it makes it harder to rely on their research as probative. It’s like seeing a report from Benson and Hedges about passive smoking – you sort of suspect there’s a starting point there)

 I liked this quote from a senior social work manager, though :- “Support is crucial. [But] we have to take a pragmatic approach as often the support that has been suggested by the courts or experts is simply not available.”

 Very true – an awful lot of expert reports which recommend that the door to rehab is not shut do so in complete absence of context about just how feasible it is that the parents GP will commission six months of therapy for them, and that that can start without delay.

The first bit of this next quote is blindingly obvious, the second part much less so.

Poor parenting, drug or alcohol misuse, domestic violence, and parental mental health problems, all increase the chance of harm when the child returns home. Farmer et al found that 78 per cent of substance-misusing parents abused or neglected their children after they returned from care, compared to 29 per cent of parents without substance misuse problems29


78% of rehabs involving substance-misusing parents result in further abuse or neglect. Being a maths guy, that suggests to me that rehab to parents who misuse substances is more likely than not to result in the child being abused or neglected if rehabilitated to their care. (of course, what you argue in any individual case is that for this particular parent, these are the factors that mean the Court can be confident that they are one of the 22% who won’t abuse their child; but that context of how prevalent the risks are to that subject-group remains important.)

 The challenge of rehab to a substance-misusing parent is significant – on the one hand, if you can resolve the drug problems there’s often a good parent underneath, but on the other it is so easy to be over-optimistic about an upward curve on a graph of peaks and troughs being a sign of a genuine change – being too close to the graph to see the pattern as being anything other than up, up and up)

From a bit more of a parental perspective, I think this is probably a valid and fair criticism of LA support.

Where support is provided it is often removed after a short period of time, before a problem has been sustainably addressed. Alongside resource constraints, support can be removed due to a belief that parents need to be able to shoulder their responsibilities and not become dependent on services33. Support is often discontinued once a child returns home without any assessment of whether the families’ problems have diminished. This results in further instability and an increased risk of harm to the child. Parents also report concerns about the short-term nature of interventions designed to support them.

Some more recommendations – all of which make sense to me

Decisions about whether a child should return home must always be led by what is in their best interests.   [Of course, it already is, it is just that what one body thinks is in the child's best interests isn't necessarily the same as what another body thinks]

Support for children and their families prior to and following reunification must improve. 

 The government should ensure there is sufficient support for parents who abuse drugs and alcohol, who are victims of domestic violence, who have mental health difficulties or who have other issues which could affect their ability to parent effectively when their child returns from care. Local services must be incentivised to provide sufficient support for these parents. 

 Local authorities must ensure that the support provided to children and families matches the needs identified in a child’s risk assessment. This information should be used to inform local commissioning and investment decisions. •

Local authorities must ensure that foster carers and residential care workers are involved in the process of a child returning home from care and are supported to help the child prepare for a return home, where that is in their best interests. 

 Guidance on designated teachers for looked after children should be revised to include children who return home from care, even if they cease to be looked after on their return. The support provided by the school can play an effective part in successful returns home.

The very last bit of the report sets out a new method of classifying risk, which the NSPCC are working with 8 local authorities on. To my cynical eye, it looks somewhat simplistic given how complex the variables are in child protection cases, but it’s not bad as a benchmarking exercise. I’m not sure I’d place quite as much weight on them as the child’s wish to return home being an element that allows you to consider the risk is lower. (It seems to be about a third of the factors in weighing the risk, which appears to my untrained eye to be far, far, far, far, too high)

Classifying the risk of reunification – a tool to support decision making about children returning home from care, adapted from Safeguarding Babies and Very Young Children from Abuse and Neglect (Ward, Brown and Westlake, 2012) 

 Severe risk

 • Risk factors apparent and not being addressed, no protective factors apparent.

 • No evidence of parental capacity to change and ambivalence or opposition to return home by child or parent.

High risk

 • Risk factors apparent, and not being addressed. At least one protective factor apparent.

• No or limited evidence of parental capacity to change and ambivalence or opposition to return home by child or parent.

Medium risk

• Risk factors apparent or not all risk factors addressed. At least one protective factor apparent.

 • Evidence of parental capacity to sustain change. Parents and child both want return home to take place. 

 Low risk

 • No risk factors apparent, or previous risk factors fully addressed, and protective factors apparent.

• Evidence of parental capacity to sustain change. Parents and child both want return home to take place.

subdural haematomas, fractures and rickets

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met.  (It may have gone higher than that,  since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.


[Caveat - there's obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of "We don't believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect" to "the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings" and where this LA positioned themselves on that wide scale is probably critical]

“ISW this a dagger I see before me?”



(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)




The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.


The report can be found here: -


The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.


One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation.  (Perhaps we have a third report in the wings on psychiatrists)


One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.


But heck, what’s wrong with Red Queen justice – sentence first, verdict later!




Pink Tape has done a very good article on this report, written by Noel Arnold  (getting in first, whilst I have been busy puppy-wrangling)  :-




I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right.  Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.


So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.


(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)





So, what are the headlines?



Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.


It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.


In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.


There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.


Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.


Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.


Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:


Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).


 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.





Those all seem, at first blush, to be pretty positive conclusions  (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR  (ISWs are just telling us stuff we already know and should be frozen out) and the LSC  (ISWs aren’t as good as psychologists and should be starved out)


I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.


They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!


They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings.  And those assessments already cost more, and take longer.  (I shall remain silent, if not neutral, on whether they are better or worse in quality).   That situation will not improve as the demand for them goes up.


If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.


If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker  (or an old-school Guardian, but that’s an entirely different debate).


If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)


I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.


I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour.  I am struggling to see the savings here.  I will have a report which is twice as expensive, takes months longer, and is less on point.


What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars.  We will all just smoke the free cigars, I’m afraid.


“A labyrinth of DoLs”

 An imaginary judgment


(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)


 The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.


The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.


Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.


The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.

However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.

The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.

In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.

 Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.

I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.

 They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).

I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.

The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.

L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.

They state that it is of significance that their Freedom of Information request gleaned that :-

 (a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front

(b) Since the construction of the maze, no resident has left the home by way of the back door.

(c) All residents who have left the home have done so by the front door, which had been unlocked for them by staff.

Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

 The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of him.

It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.

 L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.

As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at [74];

(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at [74]; and

 (c) the confinement must be “imputable to the State”: the Storck case, at [89].

That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.

To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?”  , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131;  Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]: “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”


The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.


In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.

 1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.

 2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.

3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

4. The purpose of the arrangements under scrutiny can be relevant.

 5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant

 6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.

I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?


I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived. 

  (I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)


RE  C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011) [2011] EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.


The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:- 

 It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like


 I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.

 I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011) [2011] EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.

HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA [2010] EWHC 785 (Fam), [2011] M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA [2011] EWCA Civ 190, [2011] 2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).


The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-

1. There is an unlocked door through which L may leave at any time.

2. L’s needs are being met in the unit

3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.

 4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission 

5. L is not on any medication

6. L has not been the subject of any restraint

7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.

On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.


Set against that,  I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.

I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.

This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it.  I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.

Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.

However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.

If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.

 The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.

I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.

Is more Hedley than the Mail *

My ongoing and ever growing brain-crush on the Honourable Mr Justice Hedley continues apace, in K (Children) 2012   – which can be found here :-

*(apologies for the title, the story has nothing whatsoever to do with the Daily Mail)

This case is not particularly remarkable for its grappling with complex legal issues or because it resolves a matter of grave national import. The facts of the case are incredibly sad and the matters of huge importance to the family and those working with them, but the case is of interest and significance for the way that the Judge approached matters.  I hope that in years from now, we will see this case as one of those times when fish climbed out of the sea with stubby fins onto the land and gulped pure clean air.  (Probably not, but I am, despite eighteen years in child protection law, an incurable optimist and a hopeless romantic)

I would urge you to read these short extracts, but effectively, this is exactly what I had in mind when I wrote about an inquisitorial approach (actually well beyond, in the right direction).

The Judge was dealing with a case with three children with profound special needs as a result of their disabilities, and the dispute that the family were having with the Local Authority about services for the children; culminating in the issue of care proceedings and there being considerable conflict in the papers as to where the children should live and whether the threshold was met. It could very easily have been approached as a classic adversarial case and the parties spending two weeks in the High Court tearing one another to pieces and seeing who was limping least at the conclusion of the case.

Instead, a very different approach was adopted.

16. Because all this seemed to me both unusual and difficult, I have gone about its resolution in an unusual manner, albeit with the consent throughout of the parties.  The fundamental purpose has been to see if a way forward can be found in partnership, which, as I have said, must happen indefinitely into the future, without the need for a damaging trial over the question of whether the threshold criteria have been satisfied.  I regarded this approach as all the more urgent in this case because of the deeply conflictual tone of almost all the statements, not just of the parties towards each other, but of the Local Authority towards some experts and, of course, a letter from Simon suggesting, unsurprisingly no doubt, that he has been drawn up to his ears into this dispute.  It is the fact that some two years have passed since a Local Authority social worker was admitted to the house and it is the fact that, until this hearing began, the parents had not spoken to the current social work team.   It was a matter of relief that on one matter all parties were agreed.  This could not go on and change had to occur.  It is also worthy of note that, as a matter of fact, the combined work of the parents and the professionals to date has in fact succeeded in promoting and safeguarding the welfare of the children in very substantial part.  Despite the ongoing conflict with the family, the Local Authority social workers have managed to negotiate substantial investment in the family, including procuring the two places at H, and there is no reason to doubt that the parents have secured the children’s emotional welfare throughout.

17. I have pursued this aim by making my provisional views about the case and my suggested possible route to solution much more readily available than would necessarily be right were I hearing an arm’s length trial.  I have allowed considerable amounts of court time over the last seven days to be used outside the court room.  From those discussions have emerged four agreements: one between the Local Authority and the parents, one between H and the parents, and a tri-partite agreement between them all, and a further agreement between the Local Authority, the parents and the proposed coordinator or case manager in this case.  There are two issues of disagreement remaining and all agree that they can be considered in this judgment and then acted on by the parties.

18. Moreover, on the second day of the hearing we adjourned to H, who kindly made their boardroom available to us.  During the course of discussions, the parents met constructively with the social work team under the aegis of the guardian, though of course this must only be the start of what needs to be a regular pattern of meetings.  I had a chance to see the premises and speak informally with the general manager and the chief executive.  I also had the chance to see the family together, of which more in a moment.  At the request of the parties, I also went to the special school (F) attended by Alec, Alice and now Zac, and spoke informally with the headteacher and a member of the medical staff.  I wish to record my gratitude both to H and F for their tolerant hospitality, and I have written personally to the general manager and the headteacher to express that.  In a case in which, as I have said, context is everything, I found this second day particularly valuable.  In short, this case, being unique, has received unique treatment.

And here :-

43. I greatly appreciate the effort of all – family, professionals, Local Authority, H, guardian, as well as the legal teams who have given clear advice and have been willing to adopt both an unconventional and a non-confrontational approach, all of which have served to secure this end.  I want only finally to say this.  Whatever the disputes of the past, this remains an intact family in which the best interests of the children are paramount.  I hope this case has given the parents the confidence to continue the task that compels the admiration of all.  I hope, too, that in that renewed confidence they will feel less anxious, will feel that they do not always need to be right on everything or in control of every issue, but will learn to trust others and to respect and consider contrary views; in short, that all will come to recognise that that which will unite this family, and H and the Local Authority in the future, is not the written agreements, important though they are, but their shared commitment to promoting the welfare of these children, especially Alec, Alice and Zac, who of course have nowhere else to turn.

Now, all of this may have come in the context of a unique family  (I nearly said very unique, but of course that concept is a nonsense), and I note that the school provision for the children is costing £246,000 in 2012 and will increase year by year; and that in those circumstances one can understand that there is more willingness to be flexible and supple and try a different approach, but I really would like to see much more of this.

At the risk of getting into private law, which is no longer my cup of tea, I have thought for some years that an approach in private law where the Judge indicates really early on what a desirable final outcome for the children would be  [that they see both parents, spend lots of time with both, know that each parent loves them very much and that whilst they don’t love each other any more, that doesn’t stop mum being mum, and dad being dad, that new relationships for mum or dad don’t change that at all]  would be, and directs the parties as to how to get from this awful starting point to that desirable finishing point, is worth considering…. sorry to keep people waiting for that unexciting ending…

“Gone till November, I’ll be gone till November” *




Has the 26 week target been snuck in by the back door?




There’s a new computer system for care proceedings in the Courts which tracks a variety of useful pieces of information, and is worth reading, because it has come in for all new cases issued after 2nd April.


The Courts have been given some guidance, which I set out below, and can also be found here :-



Look specifically at the  passages about Timetable for the Child, which is all calculated on the basis that the timetable for the child (in which the proceedings should be resolved) is 26 weeks from issue.  This is in readiness for the change to the law to make that a hard cap. (but of course we don’t yet have such a cap)


Obviously, this is just guidance to the Court staff on the new system and not legal authority for 26 weeks, but I do suspect that some resistance will be encountered when listing IRHs on new cases that go outside the 26 week period that the computer is setting as a maximum, and it appears that where the Court decide that the case will go over 26 weeks they have to make a formal decision about this and record it on the face of the order.


It’s always nice, when introducing new principles about timing of care proceedings, to bury them in some guidance to court staff as to how to use their new computer system…





The new care monitoring system (CMS) is a judicially led management information programme intended to provide accurate ongoing information about case volumes, case progress and allocation. The system will provide the case management information necessary to enable leadership judges and the administration to oversee and manage public law caseloads and the allocation of individual cases in their Care Centres. The programme will also assist judges, legal advisers and magistrates to focus on avoiding delay for children and will help identify the real causes of delay. CMS has been jointly developed by the judiciary and HMCTS and has been written to a judicial specification which looks at both the real progress of a case through the court and the DFJ’s and JC’s responsibilities for all cases within their courts.

The system is being piloted nationwide from the 2nd April 2012 from when all new care and supervision cases will be entered on to the system.

The CMS case summary will provide judges/legal advisers/benches with ongoing information updated for every hearing about the ages of the child or children they are dealing with, the length of time a case has been running (measured in weeks), the number of hearings which there have been, any adjournments of hearings and applications for experts.


In preparation for the reforms which are contemplated in the family modernisation programme, and for the purpose of this trial, all cases will be given a standard 26 week timetable on issue. The system will keep track of where the case is in the process and whether it is on time to be completed within the 26 week period.

If, at any point, the court decides that the timetable for the child is such that the proceedings will not be completed within 26 weeks of issue then it will make a decision about this. The determination of the timetable for the child must be done at the CMC. This must be done in court in the presence of the parties based on the evidence and information available and what it is necessary to do to conclude the proceedings. The timetable should then be expressed as the expected number of weeks which are necessary to conclude the proceedings. This must then be recorded on the face of the order (usually in the form of a recital). Staff will use that order to input the data onto the CMS.

The timetable for two or more children involved in the same proceedings may be different. Once the expected conclusion date has been set as being outside 26 weeks, it cannot be reset; however this does not preclude the case being completed earlier than the expected conclusion date.




* Re November – it doesn’t quite work out, because 26 weeks is mid-October, but I didn’t think “October, the trees are all bare’ works as well, and also, it reminded me of the brilliant Vic and Bob sketch, where Vic is Craig David, working in a garage shop, and Bob is his manager, rollicking him for not turning up on Monday, Tuesday, Wednesday, etc and then Chilling on Sunday.  Craig David quits, and is replaced by Wyclef, who cheerfully tells poor Bob that he’ll be “gone till November”

Nobody expects the English (and Welsh) Inquisition



(their chief weapons are delay, their devasting deployment of working parties and committees, and more delay)



This post arises from Mr Justice Ryder’s fourth tranche of Modernisation updates.


You can see an excellent analysis of this update over at Family Lore here:-



and the actual source document is here :-



The bit that has really struck a chord with me is the recognition that what we have at present is not the “inquisitorial” system that it is often labelled, but at best “quasi-inquisitorial” and in reality “adversarial”


This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the

court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly.


Recently, every time anyone has said to me that we have an inquisitorial system and not an adversarial one, my response has been “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”


Short of ducking-stools for witnesses, I’m struggling with a suggestion to make our process more adversarial.


[Not that this is necessarily de facto wrong – you might well argue that when the State and Courts are deciding what should happen inside a family, that this is just as worthy of an adversarial system as crime, or personal injury; but rather that the illusion of it being an inquisitorial system is a nonsense. If it is a good thing to have an adversarial system in family law, then let’s say so and be transparent about it, but if we think an inquisitorial system is the right way to do it, then let’s genuinely have one]



So, how could we make the system an inquisitorial one?


The Family Drug and Alcohol Court is a reasonable model – though it takes longer and no doubt costs more, the outcomes – in terms of keeping families together and having rehabilitations that work, are far superior to other Courts.


My imaginary version of an inquisitorial system would work like this (and I don’t claim it is without flaws) :-



  1. The Local Authority file their threshold document, outlining what has gone wrong in the past, and also outline the areas that they would want to change in the future. Where there are practical steps that the parent could take to address the concerns, they should be set out.
  2. The parents with the assistance of their representatives produce a response to threshold, outlining what is accepted and what is not, and outlining where they accept a need to change, and whether they will take the practical steps put forward.
  3. If there is agreement, the heads of that agreement will be approved by a Judge, who will make it plain that progress in relation to the areas of concern will be necessary by the time the 26 week period is up, and that the parents will be measured against what they do  (moving away from the psychological bent of what a parent is theoretically capable of with the right support and towards what they actually do]
  4. If there is a dispute, the Court will consider matters and give a judgment that sets out clearly where the LA concerns are justified, and where they are not, and what has to be done between now and the final hearing, by all concerned.


[In essence, this would be similar to the written agreement that is attempted at Letter Before Action stage, but this time, it would have the force of the Court behind it.  If the Court rule that the level of drinking these parents do isn’t problematic, then we knock that issue on the head and waste no further time on it unless matters deteriorate. If the Court feels that these parents would need to stop using heroin in order to parent to a good enough standard, then the parents can hear that from the Court, rather than from the social worker they’ve no time for…]


  1. It would be the Judge, at that stage, who would decide what expert evidence they require to allow a fair outcome in the case and what information needs to be gathered. Of course, representations can be made, to ensure that the Judge has considered matters from a variety of perspectives, but rather than the Court being asked to approve the instruction of experts, the Court drive the process and decide what expert evidence THEY need to make the right decision. And they set the questions  (again, with some input to ensure that if there’s a critical issue that might be overlooked it is drawn to their attention, but getting away from the Letter of Instruction being a document produced by committee with the questions being pulled this way and that so that they end up being sprawling, voluminous and anodyne, and instead, focus on the questions that the Judge needs the expert to give guidance on)
  2. The Issue Resolution Hearing becomes the sort of hearing we were promised when the PLO launched, conducted by a Judge who has (a) judicial continuity (b) time to consider the papers and embrace the issues, and with advocates who are prepared to set out what issues are agreed and which are controversial, and what the proportionate way of dealing with the controversial issues are.
  3. At the final hearing, if less than fifty per cent of the questions asked of the professional witnesses don’t come from the Judge, something has gone wrong.



Now, of course, you can’t do any of that whilst Judges have the time pressures that they currently have. Anyone who comes to family courts will have noticed how the lists have swollen over the years, and tackling a directions day must now be something akin to trench warfare for a family judge – just getting through the day is a triumph, never mind the overarching strategic objectives.


It might well be that this sort of inquisitorial approach would free up space at the other end of the spectrum – having Judges spend far less time on cases where no stone is left unturned, no bad point left untaken, and no contact record unthumbed.  But I suspect that those savings would take time to come through, and that poor Judges would find themselves in an unenviable interlocutory position of having to be continuing trench warfare in the old style cases and having to be Field-Marshal Montgomery in the new style.


As a sidebar, here’s a little theory – I would wager that an astronomically greater proportion of collective brainpower and prep (in terms of Judges, solicitors, counsel and professionals) goes into each minute of a final hearing compared to a Case Management Conference, but if you put that same degree of focus and thought into a CMC, you’d reap substantial rewards at the end of the case, by getting things right at the beginning.


And of course, the listings stick the CMCs right in the middle of that trench warfare directions day, when a Judge is listening to the fourteenth set of people who have ‘helpfully agreed some directions for your approval’  and with a portion of their mind turning to the next nine cases that are waiting outside…


“Whatever happened to the likely harm?”


The Court of Appeal gave judgment this week in an interesting case where they attempted to cut through the thicket of authorities on whether having identified a parent as one of a pool of possible perpetrators in an earlier case, the Court should approach a future case involving the parent as either a sole parent or in a new relationship.  Is there a likelihood of future harm made out as a result of the first finding, or is the likelihood only applicable where the Court found that the parent HAD caused the injuries and  the previous finding be completely ignored if it is a ‘pool of perpetrators’ finding, or does each case turn on its individual facts?



It has been settled law for some time that a Court faced with a non-accidental injury (or indeed sexual allegation) can find that the threshold is met even if it is not possible to identify which of the parents is the perpetrator of the abuse, and this was extended still further with the parents AND a third party being the potential perpetrators and the Court being unable to exclude the parents from being the perpetrator of the harm/abuse  ( which is commonly called a “Lancashire” finding  - I wonder if they call it that in Lancashire, or if like French kissing and Brussel sprouts, they have an entirely different term for it in the eponymous locale)


Indeed, there are authorities to indicate that where it is not possible for a Judge to exclude on the balance of probabilities one of the parents, the Court should not ‘dance on the head of a pin’ to try to decide, for example that the injury was 60% likely to have been committed by mum, and 40% by dad, so that dad is not ‘more likely than not’ to have caused the injury.  (Re SB)


But there is a conflict between various authorities as to whether, when a parent is the subject of a “Lancashire” finding and goes on to separate from the other subject of that finding and go on to found a new family, that finding has any evidential weight in establishing the threshold with the new child, or whether it should be ignored completely.



RE J (CHILDREN) (2012)


[2012] EWCA Civ 380



All of my quotations here are taken from the lead judgment of Lord Justice McFarlane, who has again done most of the heavy lifting, in a case which has required a great deal of it.




The Court identify, with the succinctness that is their hallmark, the issues of judicial importance in the appeal here :-


16. Put shortly the point raised by this appeal is as follows:

a) Where a previous court has found that there is a ‘real possibility’ that one or other or both of two or more carers have perpetrated significant harm on a child in his/her care;

b) Is that ‘finding’ a ‘finding of fact’ that may be relied upon in subsequent proceedings relating only to one of the potential perpetrators in support of a conclusion that there is a ‘real possibility’ or likelihood of a subsequent child in a new family unit of which he/she

is part suffering significant harm or is it a ‘finding’ that must be totally ignored in the subsequent proceedings?

17. There have been authoritative statements in judgments of the Court of Appeal and the

Supreme Court which assert that the previous adverse ‘finding’ must be totally

ignored in any subsequent proceedings involving a new family unit, on the basis that a

‘finding’ that there is a ‘real possibility’ is not a ‘finding of fact’ at all as, by

definition, it falls short of a finding on the balance of probabilities. Despite these

apparently clear authoritative statements, the appellant argues that such statements

are, or may well be, at odds with the fully reasoned analysis of the approach to be

taken to the statutory threshold criteria in Children Act 1989, s 31 as set out by Lord

Nicholls of Birkenhead in a trilogy of cases in the House of Lords.



The particularly troubling authority, is the Supreme Court authority of Re SB, and this passage in Baroness Hale’s judgment :-


“49 There is a further reason to remit the case. The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason.That, as already explained, is not a permissible approach to a finding of likelihood of future harm. It was established in In re

H [1996] AC 563 and confirmed in In re O [2004] 1 AC 523 , that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only   once those facts have been found that the degree of likelihood of future events becomes the “real possibility” test adopted in In re H. It might have been open to the judge to find the threshold crossed in relation to William on a different basis, but she did not do so.”



And the assertion therefore is that in allocating a pool of perpetrators, the Court has not said in relation to any particular one of them that they HAD caused the injury, but rather that an injury HAS been caused and that there is a real possibility that it was caused by A or B.   That is sufficient for THAT particular child, but on moving onto another child born to A or  B  at a later stage, it does not satisfy the threshold criteria for the younger child.


As a Local Authority hack, it would greatly trouble me for the Court to conduct a fact-finding hearing, and decide that the injury was caused by either A or B, and neither could be excluded, but for A and B to then part company and have new families, and the finding to be completely excluded from consideration  (rather than an approach where there is a historical risk to be assessed and considered by the Court and the parents change in circumstances, passage of time, any reflection or admissions etc be taken into account as to what action, if any is required in relation to the new child)



You will spot immediately, that the Court of Appeal are in difficulties, since they can’t over-rule what Baroness Hale said in Re SB  (though if they consider that the interpretation of what Baroness Hale said has been misconstrued, they can provide some clarification)



The next problematic authority is Re F (Interim Care Order) 2011, and the facts of that case are set out below :-


The second recent authority which has been at the forefront of our consideration is ReF (Interim Care Order) [2011] EWCA Civ 258. Re F involved a father in respect of whom there had been a previous finding of fact relating to his eldest child who had suffered two leg fractures. In care proceedings relating to that child the finding as to the perpetrator of the fractures was that both of that child’s parents were in the pool of possible perpetrators. Time then moved on, the father separated from that child’s mother and he became a parent for a second time when a baby was born to his new partner. The local authority issued care proceedings with respect to the new baby on the basis that the previous finding of the father being a possible perpetrator was sufficient to cross the threshold criteria on the basis that the new baby was likely to suffer significant harm. The trial judge dismissed the care proceedings on the basis that the previous finding was insufficient to support a ‘likelihood’ threshold finding in relation to the new baby. The trial judge did, however, grant the local authority permission to appeal to the Court of Appeal.


The Court of Appeal, when hearing Re F, grappled with the Re SB issue here (my bolding):-


Mr Heaton contends, and Mr Hayden concedes, that the reasoning so clearly set out in In Re S-B, at [49], has caused great consternation among local authorities, among other professionals who work in the area of public law and among academic commentators. Mr Heaton’s aspiration is to persuade the Supreme Court to modify its demand for proven factual foundation in uncertain perpetrator cases. Take, says he to us this morning, a case of two parents who are consigned to a pool of possible perpetrators of non-accidental injuries to their child; and who then separate; and who each, with other partners, produce a further child, who together become the subject of conjoined care proceedings. Are both those applications for care orders required to be dismissed even though before the court is, on any view, a perpetrator of injuries to that older child? No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the state’s removal of a child from his family, which I consider very precious. I also applaud the Supreme Court’s regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution.


For those reasons I would not wish us to foist upon the Supreme Court a full appeal in circumstances in which it had not itself had the opportunity to consider whether to accept it.”







As luck, for good or ill, would have it, the parents in Re F made some other admissions which were capable of resolving the threshold, and therefore the issue of whether threshold was met fell by the wayside, but the problem as outlined by Mr Heaton above, remained a live one, hence the Court of Appeal revisiting it in this case of RE J.


In a nutshell, here are the counter arguments deployed by the parties :-


76. Mr Cobb’s attractive presentation of his case leads the judicial listener

through the words of Lord Nicholls endorsing, as he does, the earlier utterances of Wall J and Hale LJ. The Local Authority’s ultimate submission is that the court should adopt theapproach of Lord Nicholls in Re O and N to the determination of the “likely to suffer” threshold criteria in a later case, with the result that an uncertain perpetrator from anearlier determination is regarded as equally likely to have been the cause of past significant harm, and that that established “fact” is a sufficient vehicle to satisfy the threshold in the later case.


77. Attractive though that argument is, Mr Paul Storey QC on behalf of JJ and Miss Rowe QC on behalf of DJ argue that it is untenable. They submit that to compare the stage of proceedings being described by Lord Nicholls in Re O and N with the stage of proceedings being undertaken by HHJ Hallam in the present case is not to compare like with like. In the former the threshold was crossed and there was no strict evidential yardstick to be deployed by the court in exercising its jurisdiction in affording the child’s welfare paramount consideration in deciding what, if any, order to make in the concluding “welfare stage” of the proceedings. Judge Hallam, on the other hand, was required to operate within a strict evidential context, only relying on past facts which had been established on the balance of probabilities.


78. The opposing counsel submit that Mr Cobb’s argument falls down because a finding that someone is in the pool of perpetrators is no more than a finding on the basis that there is “a real possibility” that they perpetrated past injuries, a finding which by definition falls short of the balance of probabilities. To use that finding as the basis for holding that there is a further “a real possibility” (that is a likelihood) of that person causing significant harm in the future, is to find the threshold crossed on the basis of two successive findings of “real possibility” and no finding at all of fact on the balance of probabilities in relation to the one, now separated, parent. Mr Storey submits that such an outcome, on the present law, would be impermissible and that parents and children would risk permanent separation by the State in circumstances where absolutely nothing adverse about the parental care had been established on the balance of probabilities.



In weighing matters up, the Court of Appeal warned against the risk of artificially limiting or restricting the issues and evidence available to the Court and gave this helpful guidance (again, bolding is mine)


81. Pausing there, I would question the desirability of artificially limiting the judicial consideration to just one, albeit important, aspect of the case. A judge hearing a fresh s 31 application, some years later, about a new family unit which involves a parent about whom adverse findings have previously been made in another family context, should be exposed to the full detail of the available evidence and be permitted to come to her own overview and determination taking into account all of the material insofar as she considers it to be relevant and giving it such weight as she may see fit at the time of her determination. Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task. In determining whether the threshold criteria are satisfied in relation to each of these three children as at 3rd March 2011 a judge must be under a duty to acquaint herself with all of the available evidence and then bring it to bear on the ultimate question of whether, in the context of this case, each or any of these three children can be said to be “likely to suffer significant harm” attributable to failures in parental care likely to be given to him as at that date.


82.I would go further and criticise the decision to tee up the preliminary issue for

determination within an otherwise entirely empty evidential context. By the relevant date seven years had passed between the death of T-L and the commencement of child protection procedures in relation to the new family unit. JJ was seventeen when T-L died and she is now twenty five. Much has no doubt happened in her life in the intervening period, some of it has continued to involve SW. On the positive side it is apparently the case that she had lived with these three children as DJ’s partner for well over two years prior to the implementation of protective measures and without apparently causing any degree of concern to child protection professionals.


83. When a local authority issues a s 31 application seeking the court’s determination that the threshold criteria is crossed at the present time in relation to a child or children, the court must be under a duty to ensure that it has before it not only evidence of what may have happened in one of the parent’s lives years before, but also some account of the events in that parent’s life during the following years and the current circumstances in the family unit which is now being brought before the court within the proceedings. The extent, quality and character of the evidence that a judge may need will of course vary from case to case. But in the present case it would seem to me that, in addition to social work evidence as to what, if any, social work and other professional contact there has been with the mother and/or the new family over the intervening period, together with a basic social work assessment of the children’s current circumstances within the home, there should be an expectation for the mother to file evidence which should include an up to date statement of what she now says with respect to her care of T-L and the matters that had been the subject of HHJ Masterman’s findings.


84. A judge in care proceedings at the threshold stage has the important responsibility of determining whether or not he or she is satisfied that, at the relevant date, that is therefore in the current period of time, the threshold criteria are or are not satisfied with respect to a particular child. Artificially to limit the judicial exercise to the consideration of facts relating to a period seven years earlier and, further, to limit consideration to only some of those facts, seems to me to fall well short of the required evaluation of the circumstances of the new child before the court in the current time period.


85. Despite making these negative observations about the process adopted in this case, I have nothing but professional sympathy for HHJ Hallam who was presented with the task of determining the preliminary issue in accordance with ground rules chosen by the parties. The Local Authority chose not to file any additional evidence. A direction for the mother to file a statement was made but produced no more than a position statement. The Local Authority expressly elected not to rely upon any of the negative findings made by HHJ Masterman other than those relating to the perpetrators of physical injury. Having been presented with the case within this restricted compass, HHJ Hallam was further handicapped by the fact that she was not HHJ Masterman, who had plainly regarded the aspects of the case that fell short of the direct physical injury of T-L as being of an equal standard of concern with the infliction of those injuries.


86. It is sometimes convenient, efficient and realistic for local authorities to make concessions as to aspects of the evidence. Indeed, such no doubt is the stuff of every day experience in courts conducting care proceedings. There is, however, a danger of such matters being elevated to the status, as would be the case in civil proceedings, of points of pleading, thereby removing from the judge’s consideration evidence which may, despite the view of the local authority, be of some importance



I think that this paragraph, during the Court of Appeal’s analysis of the authorities and the issue at hand, demonstrates the Court’s willingness to approach this with child protection being at the forefront :-


92. Standing back from these cases, there is, I would suggest, a qualitative difference, in terms of the need for child protection, between a situation where absolutely no adverse findings have been made as to past child abuse, and a situation where serious findings of child abuse have been made in relation to a child in the joint care  of her parents either one or both of whom were the perpetrator(s).


I am, of course, biased, but that seems to me an entirely sensible approach. Of course there is a difference in the risks to be considered where one parent has been found to be a potential perpetrator of really serious injuries as opposed to a parent who has never come to the attention of the Local Authority, and pretending otherwise does not address the issues.  (That doesn’t mean that the previous finding automatically damns the parent, but it must be right that there is a risk to be weighed and assessed in relation to whether there is a risk of future harm arising from it)


108. With respect, I do not consider the very narrow evaluation of this issue which it is said the short judicial statements in Re S-B and Re F require is supportable on the basis of the earlier authorities, the principal one in this context being the Court of Appeal judgment of Robert Walker LJ in Lancashire County Council v B which allowed the appeal in relation to the child minder’s child, B. In my view the Lancashire case can be readily distinguished from the present case. The only culpable matter that could have been established against the child minder was that she had caused the injuries to child A. The evidence was insufficient to establish, on the balance of probability, that she was the perpetrator. There was no suggestion that she would in the future be part of a group of carers with the parents (about whom, collectively, there was a finding). There was therefore no proven fact upon which the risk of future harm could be established.


110. The Lancashire case in the Court of Appeal is undoubtedly authority for the proposition that where there is absolutely no adverse finding of fact against a parent, the likelihood threshold cannot be established. It is not, however, authority for the obverse proposition that you can only establish the likelihood threshold if you can identify the perpetrator irrespective of any other adverse findings that have been made.


111. Likewise Re S-B is not authority for the proposition ‘if you cannot identify the past perpetrator, you cannot establish future likelihood’. In that case, which was of a oneoff        (‘whodunit’) injury, there was no question of failure to protect and no finding of collusion. Thus when, in paragraph 49, Baroness Hale describes as it as impermissible to hold that the likelihood threshold in relation to the non-injured child, William, was established on the basis only that there was ‘a real possibility’ that the mother had caused the injury, she does so in the context of there being no other adverse findings against that mother.



And here is the conclusion:-


114. At paragraphs 79 to 87 I criticised the narrow and legalistic approach adopted before HHJ Hallam in the present case. In my view, where there are significant adverse findings made on the balance of probability against a parent in previous proceedings, irrespective of the previous court having been unable to identify a perpetrator, a court seized of an application under s 31 has a duty to look at all of the available material including those adverse findings. Each case will no doubt differ from each other both on the question of whether in the new circumstances the s 31 threshold is actually established and on the question, if it is, whether the welfare of the child requires protection under a s 31 order. These are matters for courts to evaluate on a case by case basis and are not the stuff of a blanket policy based on the single point that,irrespective of what else has been found, if the past perpetrator has not been provedthe threshold cannot be crossed.



Given that the Supreme Court in RE SB weren’t deciding this issue, but the principle has been derived from authority building on judicial decisions made within the SB case, it would seem to now be the law, unless and until the point comes before the Supreme Court, that  :-


A Court is not obliged to ignore a previous finding purely because it was made on a “Lancashire” type basis (that a parent is one of a pool of perpetrators), but has to look at all of the available material to consider whether the threshold is made out.


That appears to me to be a very good compromise between the polar opposites of  ‘A past finding of harm equals likelihood of future harm always’ and ‘if you were only identified as one of a pool of perpetrators rather than the actual perpetrator, that must be ignored when determining future risk to other children’




The future

130. The difficulties that have arisen in this case, in Re F and no doubt elsewhere, originate from the Lancashire case in the Court of Appeal and have been given additional focus and emphasis by Baroness Hale’s words in paragraph 49 of Re S-B. We were told, and I readily accept, that the situation is a cause for concern amongst child protection agencies.


131. Given the importance of the point in terms of its impact on the ground for families and for those charged with protecting children, there is a pressing need for the issue to         be determined by the Supreme Court so that a clear and full statement of the applicable law is achieved.



I am not sure whether any of the parties to the case intend to appeal the Court of Appeal decision, but I read that sentence to mean that they might be pushing at an open door in such an application for leave to appeal.



I’m reminded that of the three most crucial case-law arguments / decisions which could be categorised as a debate between a narrow construction of the law and the Court’s ability to make the orders that they consider in the best interests of children,  all three have now been ruled on and gone against the narrow legal construction.


(the previous two being the debate that certain remarks in RE H &R meant that the standard of proof with serious allegations was higher and that the difference with such serious allegations between the civil standard and the criminal standard was largely illusory, and the ‘imminent risk of really serious harm’ being the soundbite test for ICOs where the care plan was separation)

We’re only making plans for Nigel



Inherent jurisdiction and vulnerable (yet competent adults)




DL v A Local Authority and Others  [2012] EWCA Civ 253




A fascinating case, and one which deserves to be analysed by someone with greater skill and expertise in adult social care law than I possess. But I am interested in it, and felt it was worthy of discussion.


It deals fundamentally, with the tension between individual autonomy and protection of vulnerable persons; and of whether there is a bright line to be drawn between when the State can tell a person that they can’t make that decision because it is not in their best interests to do so, and where if so, that bright line is to be drawn.


Many people might have thought that the introduction of the Mental Capacity Act 2005 settled that once and for all :-  the State, and ergo the Court, can replace a person’s decision with one that is in their best interests if, and only if:-


(i)            they are a minor, when the principles of the Children Act 1989 apply

(ii)          they are suffering from a mental illness or disorder sufficient to justify intervention under the Mental Health Act

(iii)         they lack capacity to make that decision, when the principles of the Mental Capacity Act apply.



But nothing much in law is settled “once and for all”   (with the honourable exception perhaps of precisely what words one can or cannot use when advertising carbolic smoke balls)


And the Court of Appeal have been grappling with the issue of whether a person who has capacity, is not a child, is not mentally disordered but is nonetheless “vulnerable” can have their autonomy restricted by use of the inherent jurisdiction of the Court.


The facts of the case are relatively straightforward, and I’ll quote them from the judgment  (the bolding is mine) :-


  1. For the purposes of the determination of the legal point the parties have helpfully agreed a set of “assumed facts” which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.

“Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.


Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.


The local authority is concerned about DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.


The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.


The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife’s wishes.



When this case came before Lord Justice Wall in October 2010, he made injunctions under the Inherent Jurisdiction to safeguard Mr and Mrs L from the alleged domestic abuse from their son; notwithstanding that they did not apply for such an order and did not want that protection and were happy for their son to live with them.


Whether you think that is right or not, depends largely on where you stand on the personal autonomy versus protection of the vulnerable debate.


The legal issue for the Court of Appeal was framed in admirably concise prose by Mrs Justice Theis :-


“The central issue in this case is whether, and to what extent, the court’s inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor.”


The hearing in the Court of Appeal makes for interesting reading and some very strong arguments were marshalled on both sides.


For the appellant, DL, represented by Ms Nathalie Lieven QC  (someone I am sadly not familiar with, but without any doubt on reading this, a considerable force to be reckoned with and a piercing mind)  :-


  1. The principal arguments deployed by Miss Lieven in this court can be summarised as follows:

a) The only authority prior to the introduction of the MCA 2005 which indicated that the inherent jurisdiction extended to adults who maintained their mental capacity is limited to one case, namely Re SA. Re SA was not supported by any earlier authority and is therefore to be seen as an isolated decision which is insufficient to bear the weight now put upon it by subsequent decisions, including that of Theis J in this case;

b) The MCA 2005 was clearly intended to provide a comprehensive statutory code for those who lacked capacity;

c) If a case, such as the present, does not fall within the provisions of the MCA 2005, then there is no jurisdiction for the court to make orders controlling the lives of those who do not lack capacity within the meaning of the 2005 Act;

d) To the degree that there is any remaining inherent jurisdiction in this field, it is limited to providing a short period for the individual to be allowed to make his/her own decision, and if appropriate the provision of advice.


  1. In developing her submissions Miss Lieven understandably stressed the premium which the courts have habitually attached to the right of autonomy enjoyed by every individual in a democratic society. She relied upon the words of Lord Reid in S v McC: W v W [1972] AC 25:

“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”


[From my own distorted and unreasonable perspective, if you don’t feel even a tiny urge to stand up and applaud when reading Lord Reid’s words, I would raise an eyebrow at your decision. Were the world ever to lose all reason and appoint me to the higher echelons of the judiciary, deployment of that quotation in a relevant context would be a “Win the Game button”]



The difficulty for that case, as is obliquely noted in the Court of Appeal decision, is that it invites the Court of Appeal to conclude that Judges can’t be trusted to exercise powers with restraint and a great deal of caution, and they call upon a number of examples where such restraint and caution has been deployed to the advantage of the vulnerable.


And for the Local Authority respondent, represented by Paul Bowen  (I note that in this case, both parties had what might be described as ‘thankless briefs’  – one of them trying to justify the Local Authority’s right to interfere in the lives of people who had capacity to make their own decisions, even if those decisions might appear wrong to others, and the other trying to justify that even if the Court felt these adults were vulnerable and needed protection, the letter of the law forebade it)


  1. The appeal is opposed by Mr Paul Bowen on behalf of the local authority. He submits that the appeal is based on the false premise that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and thereby ignore their fundamental right to autonomy. Mr Bowen submits that the case is far more narrowly based than that and is limited to those individuals who fall outside the MCA 2005 but who nevertheless have not given, or cannot give, a ‘true consent’ to a particular aspect of their lives not as a result of mental incapacity but for some other reason, such as the undue influence of a third party. Mr Bowen’s submissions have therefore been to delineate the extent of the jurisdiction so that it only covers those cases where it is necessary for the court to act because a person’s capacity to make decisions for themselves has been overborne by circumstances other than those covered by the MCA 2005.
  1. Mr Bowen has the substantial benefit of being able to rely upon the analysis and conclusions of Munby J in Re SA and, understandably, much of his argument was designed to highlight and support those matters. In addition he drew attention to the fact that Parliament was expressly aware of the concept of ‘elder abuse’ during the pre-legislative scrutiny process. The MCA 2005 makes no express provision limiting or extinguishing the use of the inherent jurisdiction. Mr Bowen therefore submits that Parliament can be taken as intending that in so far as the inherent jurisdiction may cover matters outside the 2005 Act, then the legislation leaves that jurisdiction untouched to develop under the common law as it had done prior to 2005.




The decision


If you have read carefully so far, you will not be surprised that faced with deciding that Munby J and Theis J and Wall J are wrong and that Judges ought not to be trusted with the power to use the inherent jurisdiction to protect vulnerable adults, or deciding the opposite, the Court decided the opposite.

  1. I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of ‘vulnerable adults’ for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there.
  1. The appellant’s submissions rightly place a premium upon an individual’s autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA):

a) Under constraint; or

b) Subject to coercion or undue influence; or

c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

  1. I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case.
  1. In the same manner, the argument that in the Westminster case the court was concerned with a type of relief (preventing removal from the jurisdiction) which is not catered for in the MCA 2005 and therefore the existence of the inherent jurisdiction to supplement the statutory scheme is acceptable, in contrast to the present case, simply does not stand scrutiny. Either the inherent jurisdiction is there to act as a safety net for matters outside the Act or it is not. The fact that Thorpe LJ and Wall LJ were so firmly of the view that the jurisdiction had survived the implementation of the 2005 Act is a powerful indicator that the Appellant’s argument is wrong.




And then


  1. My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of ‘elder abuse’, as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term ‘elder’ in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.
  1. For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.


And this bit is particularly important, as the Appellant’s fallback position was that if the inherent jurisdiction could be used, it should ONLY be for a short period, to allow the vulnerable person a period of time for reflection (and where appropriate to seek their own independent legal advice)  – this was rejected.


68. It follows that, despite the clarity and skill with which it has been argued, I have no hesitation in dismissing the appellant’s primary grounds of appeal and upholding the decision of Theis J in this case. Although argued as a separate, fall back, ground, it must follow from my unreserved endorsement of the full jurisdiction described by Munby J in Re: SA and applied subsequently in a number of cases at first instance that I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.



In the second judgment, Lord Justice Davies is able to express matters pithily  (perhaps as Lord Justice MacFarlane had done all of the heavy lifting in his seventy paragraphs of judgment)



76. Miss Lieven stressed the importance of personal autonomy. She expressed concern to the effect that the retention of the inherent jurisdiction might for the future be resorted to by public authorities, pursuing a “Big Brother” agenda, with a view to ensuring that adults make decisions which conform to an acceptable, state decided, norm (I put it in my words, not hers). I acknowledge the point but do not share the concern. It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that. It is at all events neither possible nor appropriate exhaustively to define “vulnerability” for this purpose. Cases which are close to the line can safely be left to be dealt with under the inherent jurisdiction by the judges of the Family Division on the particular facts and circumstances arising in each instance.



What is not clear is whether these powers will be used sparingly – I recall Wall LJs injunctions being reported in the mainstream press, but they don’t seem to have opened the floodgates to lots of these applications.


And what there is not, as yet, is any decision implying that a Local Authority would have a duty to use these powers to apply to the High Court for orders in the inherent jurisdiction and under what circumstances – reading the clear need for flexibility and not circumscribing the precise situation in which the powers should be used, I rather think that there will not be a decision that sets out the Local Authority’s duty to make such applications.


Oh Ofsted, you’re such a, you’re such a hot temptation…


(A summary of the Right on Time Ofsted report into delays in adoptions)





Ofsted have prepared a report about the adoption process, which is an interesting read, particularly in conjunction with the Government’s own independent look at this, and the groundswell of political and media opinion that something has to be done.


I would not describe myself as an uncritical admirer of Ofsted, but this does actually read like a good solid piece of work, and they have examined the process and inspected those well-known saws about adoption panels causing delay, politically correct social workers delaying things to look for ethnic matches, and considered whether there is in reality any truth to it.


The report is available here



They visited nine Local Authorities, with a good geographical spread. I have the advantage of having worked at one of those authorities, which is always nice to see.


The report outlines some helpful local initiatives – I particularly liked Norfolk’s “Family Law Summit”  and a few of the authorities had appointed professionals to perform a liaison job between the social work and family finding tasks and the Court process  (what you might call the “Claude Makele role of social work”  – okay, you might not, but I just did)



Adoption Panels



I think often Adoption Panels are an unwitting scapegoat in delays, with under pressure and beleaguered social workers, questioned about why their final evidence is late find themselves throwing out the “I couldn’t get a Panel date” excuse, which is too often accepted uncritically.  (And when did you first ASK for a Panel date, and when were you told you couldn’t get one, being the supplementary questions that never get asked)


And so we have a culture nationally that the judiciary and family lawyers generally think that Adoption Panels are nothing but a blight on the process, delaying matters whilst they drink tea and eat warm curled-up potted meat sandwiches in an airless room.


Ofsted haven’t actually bought into that myth….  (bolding here is mine)


71. Inspectors found no evidence of adoption panels contributing to delay, either in their responses to cases or in their capacity to meet the fluctuating but generally increasing number of cases presented to the panel.

72. All adoption panels made efforts to meet these demands by convening additional meetings when necessary. One panel had held four extraordinary meetings in the last 12 months to ensure that recommendations were made on time. Another had increased the number of regular panel meetings; yet another had already met three times in the month that inspectors visited. Elsewhere, a panel had used the opportunity to hear a case during their recent panel training day. Three additional panel dates were arranged as a contingency by one local authority, although they had not been required.

73. Effective arrangements were made to ensure that panels were quorate. One agency had recruited additional panel members to increase flexibility. Another had two panels but members could sit on either panel as required. Vice chairs stood in for panel chairs as necessary.

74. Inspectors saw several examples of the flexibility of panels in reducing delay in cases they were tracking. In two cases, the approval of adopters and the matching of those adopters with children were recommended on the same day. This was done to ensure that introductions and placement could commence more promptly. In one of the cases, this avoided the further delay of having to wait for the placement to commence until after the sensitive period of Christmas.

75. In one local authority, the variable quality of reports and the perceived lack of management oversight of these reports prior to panel meetings were identified as significant problems which caused delays in the progression of some cases. Nearly all panel chairs, however, reported that the quality of paperwork was uniformly high.

76. The Family Justice Review made a recommendation, accepted by the government that the requirement that local authority adoption panels must consider the suitability of an adoption plan for a child should be removed. There were mixed views about this. Some, mainly court or Cafcass representatives, felt that as adoption was a legal process, this was an unnecessary duplication of the court’s task. Panel chairs in particular felt that the panel discussions brought a range of perspectives and areas of expertise that added rigour to the decision-making process. Inspectors did not, however, find that the panel’s scrutiny of the case added delay for children. There was no evidence in the tracked cases that panel decision-making about the suitability of adoption delayed final hearings.


Politically correct yoghurt-knitting social workers insisting on ethnic matches


Ofsted did not consider that this crude stereotype, much beloved of the popular press was accurate.   (I recall vividly having had to search through Hansard on the debates on the Adoption and Children Bill, to see if they had addressed a particularly quirky lacunae, and the debate was 98% about same-sex adopters and unmarried adopters, and 2% sheer drivel, much of that drivel being hackneyed clichéd garbage about whether all social workers wear corduroy trousers. It was incredibly demoralising to see that MPs charged with delivering a legal framework for some of the most vulnerable in our society were so utterly out of touch with the real world)


11. Careful consideration was seen to be given to how the ethnic and cultural needs of children could be met. As in the wish to keep siblings together, the objective of seeking to meet these needs had to be balanced against other demands, such as the need to avoid delay. There was no evidence that local authorities were only looking for the ‘perfect’ or exact ethnic match, reflecting stated policies regarding adopter recruitment and permanence.

12. While local authorities paid due attention to ethnic or cultural needs, decisions to look for a ‘best fit’ were generally made promptly. In nearly all the cases seen by inspectors, ethnic and cultural issues did not cause delays. There were several examples where minority ethnic children had been placed with adopters from a similar background, with no delay. In those cases where it proved hard to find suitable adopters who could meet children’s needs in those areas, but were not necessarily from the same background, delays typically ranged between one and six months.





Court proceedings and assessments


The finger does get well and truly pointed at the plethora of assessments and the often sequential nature of such assessments, being the main factor in delay, however.


[I am reminded here of my all-time hero, Gilbert Keith Chesterton, who stung by a series of letters to The Times about what varying things were making our great country go to the dogs, wrote his own pithy letter. Dear Sirs, I know exactly what is wrong with this country. It is me. Yours faithfully, G K Chesterton]

26. The most significant cause of delay in tracked cases was the length of time taken for care proceedings to be concluded before an adoption plan could be confirmed. The average duration of completed care proceedings in tracked cases was slightly under 14 months. The individual local authority area average for these cases ranged from 11 months to 20 months.

29. Additional and repeat assessments during care proceedings, generally occurring sequentially, were found by inspectors to contribute to the delay in achieving permanence for children in 20 (38%) of the cases tracked. This figure does not include those cases where the ability of parents and extended family members to care for children was quite properly assessed as part of proceedings in a timely manner. The 20 cases were cases where repeat or late assessments had a measurable and adverse impact on the timely granting of a placement order. Delay for these children was measured in months, or in some cases, years.


Now, one has to be careful here, because the Inspectors were looking back at cases which ultimately had unsuccessful outcomes (in that the child/children were adopted, rather than could be placed within the family), so there is a danger in drawing inferences about cases generally; since obviously all cases that end in adoption did not have assessments which made the positive difference and ended up with rehabilitation.


I happen to think that it is probably right that in 75% of cases, those second opinion assessments, when you’ve already done one thorough assessment, tell you nothing at all and make no difference.  The trick is, in determining whether the instant case before you is one of the 75% or the 25%.


32. There was a common perception that the courts’ anxieties about upholding the Human Rights Act[1] often overrode the ‘no delay’ principle of the Children Act 1989. There was a general consensus that the court process was adult-centred. One social worker said that children get ‘sucked into court’, without sufficient consideration of the impact on the children’s emotional well-being.

33. In eight cases, the commissioning of independent social work assessments essentially duplicated the task of the allocated local authority social worker and prolonged care proceedings. These assessments generally arose due to a disagreement about the proposed plan between the guardian for the child and the local authority or as a result of effective advocacy on behalf of the parents. In a number of the cases examined, repeat assessments, often ordered late in the process, ended up confirming the outcome of the original assessments but added months to the delay before the child’s future could be determined. In one case, a potential adoptive match was lost, leading to further delay.


It is hard to say if this is right; it certainly appears that there’s a correlation between the duration of care proceedings going up  and the introduction of the Human Rights Act  (and I noted from a recent analysis that prior to introducing a 40 week time limit, the average duration of proceedings was below that, and after the 40 week limit the average just went up and up and up  – why? Because once you set a time limit, it is assumed that the run of the mill case will take that limit, and then you add all of the longer ones on top, skewing the average, whereas before there was a time limit, the shorter cases would end earlier)


But correlation is not causation.  It could well be that the decisions of the Court of Appeal, quashing Judge’s decisions when they had tried to resist independent assessments had more to do with the proliferation of second opinion expert reports than the HRA  – or it could of course be that it was thinking about the HRA that led to those assessments.

I would suggest that in a considerable number of cases, assessments are commissioned not because there is the gap in the evidence envisaged by the Court of Appeal in TL v (1) LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2) ED (3) S (BY A CHILDREN’S GUARDIAN (2011) [2011] EWCA Civ 812  but through fear that if you get to final hearing without a psychological, or an independent social work assessment, or a culturally appropriate expert, that the whole of the final hearing will be spent bemoaning that fact and trying to persuade a Court that it would be unfair to make final decisions without one; so acqueisance to the instruction of an expert is often with a view to it being worse to reach a final hearing in four months time and then have the Court decide to adjourn for a further four-five months to get a psychological assessment rather than get one now, and have the final hearing in six months time.


That’s not going to change until the Courts who determine that a further assessment isn’t needed and apply the principles in TL V London Borough of Hammersmith and Fulham get the backing for that decision by the Court of Appeal.  It may come on its own, it may require the FJR to be put into statute, it may still not come, but one can’t be surprised that professionals and the Court play cautiously when there’s such a risk of being overturned when robust case management decisions are implemented.


This also feeds into the next issue that Ofsted considered, which was the relative weight that social workers evidence gets, compared to that of other professionals.

37. In nearly all local authorities, social workers reported that they lacked credibility and status in the court arena. They believed that the lack of confidence in the quality of local social work assessment resulted in a reliance on independent ‘expert’ assessments, and therefore an increase in the duration of care proceedings. Several representatives from Cafcass and the courts, including senior judges, shared this view.

38. Social workers in several local authority areas were frustrated by a sense that they were not perceived as ‘experts’ in their own right and they felt that independent assessments were not often of superior quality to their own. Managers and social workers in some of these local authorities felt that the implied criticism was unfair, and based on an historical reputation that was no longer warranted.

39. In some areas, Cafcass and the court representatives accepted that the general view of social workers may in part be based on an out-of-date stereotype, but nearly all stressed that the uneven quality of local authority social work assessment remained a problem and was the main factor in the high number of repeat and independent assessments.

40. Senior managers in four local authorities openly expressed their concern that too many social workers responsible for cases in care proceedings did not yet have the necessary expertise and experience to undertake the work well. In particular, they believed that some social workers struggled to consider permanence issues adequately among all the immediate demands of court work including undertaking family assessments, managing contact arrangements and carrying out the myriad responsibilities associated with looked after children.

It is a particular bugbear of mine that Courts continue to give Guardian’s evidence the same weight as they did in the early days of the Children Act 1989, when Guardians really were the independent eyes and ears and a check and balance that the Act envisaged, rather than the Diet-Diet-Diet Guardian we currently have, as a result of CAFCASS trying to manage the service within budget by diluting the service. The next dilution of the service will result, I think, in homeopathic Guardians, where they are so dilute that there is no longer any actual connection with the child in question at all. No doubt they will still have a placebo effect…  Ofsted acknowledge that this gap between a social worker’s opinion and that of the Guardian exists.




43. There was a general perception within local authorities that children’s guardians were likely to be more experienced than the local authority social workers and that their views, as a result, carried more weight. Several Cafcass and court representatives acknowledged that this perception may, however generalised or mistaken, have sometimes affected courts’ decision-making.

44. In one case, the local authority had a firm plan for adoption but at a directions hearing as part of the ongoing care proceedings, it was agreed that the plan should be changed to reunification with the child’s mother. Both the social worker and the senior manager reflected that the local authority had been ‘railroaded’ into this change of plan; in their view the social worker’s low status in court compared with that of the guardian, who supported the change in plan, was a key contributing factor. The social worker did not feel equipped to challenge the court’s position and the local authority acknowledged that its own legal advice was insufficiently robust. The plan for a return home was not successfully implemented and there was now likely to be a delay of over a year for the child to be adopted.







Local Authority legal representation


It would be wrong of me, as a local authority lawyer, to gloss over the complaints and issues identified in the Ofsted report about people like me across the country.

45. Views varied on the quality of local authority legal advice. Social workers and managers did not always feel that legal representatives robustly challenged parents’ solicitors or guardians. One authority had recently altered its commissioning arrangements for obtaining legal advice, and each consultation now incurred a fee. This was designed to discourage a previous over-reliance on legal advice, but there was a general consensus that access to legal advice was now actively discouraged by managers and, consequently, was sometimes delayed.


Working relationships between Local Authorities, CAFCASS and the Courts


50. Inspectors found that the relationship between the main participants in the court process was often marked by mistrust – ‘There is an inherent tension here between social workers and guardians,’ said one senior Cafcass manager – and it appeared at times to be adversarial, with each often blaming the other for faults in the system. This tension, however, was less evident in areas where more regular meetings between key agencies were held to address shared concerns and had promoted the development of more constructive and mutually understanding relationships.

51. In all local authority areas, inspectors heard that key court stakeholders met on a regular basis, but often those meetings concentrated on business issues of the court and were acknowledged to lack focus on outcomes for children. Other examples of joint working included regional away days, training, and development work as part of a local performance improvement group. Too often, however, these meetings were erratically attended or had ceased to be convened and most of the professionals spoken to by inspectors felt that they had not had a measurable impact. There was often a lack of consistency in reports about joint activity across local areas, reflecting a low awareness among professionals of how the different partners worked together.



These are much the same concerns as highlighted in the Family Justice Review, that there is mutual suspicion, distrust and blame, between the different organisations who are trying to deliver family justice. This clearly is a problem, and the bit I have put in bold above is something telling, but the first time that I’ve seen someone brave enough to put it into writing.


Maybe Norfolk’s idea of (peace) Summits is a good one.  I for one look forward to being involved in such talks, and perhaps we should introduce the UN Model of simultaneous translation too, since Local Authorities, Cafcass and the Courts all seem to be speaking slightly different languages.





Get every new post delivered to your Inbox.

Join 2,371 other followers