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Monthly Archives: July 2012

some titbits from the Justice Ryder talk

 

A few pieces of information that weren’t necessarily known before, that emerged from a talk he kindly gave in my neck of the woods.  I arrived late, so if I missed any announcement about Chatham House rules, I’ll obviously take this down.

 

1. There is a judicial review lodged about the LSC and whether they were reasonable in a particular case in refusing funding. From the very little that was given away, it seems to be a case involving private law, and parents who could not afford an assessment deemed important by the Court, so the report was commissioned and the costs directed to the Guardian’s public funding certificate. No timescales for when this will be heard.  The Judge was obviously very circumspect, and appropriately so, and did not discuss any detail or view of the case, but merely passing on that such a case was in the pipeline.

 

2. In drug and alcohol cases where longer testing is required, they might be able to exceed the 26 week limit -BUT it would be after the Court had inspected the evidence and considered that the timetable for THAT child warranted the case going beyond 26 weeks.

 

3. They have been discussing what to do with family and friends who present as viable but come forward very late in the proceedings; one possibility being actively considered is whether the Care Order be made (with the Court effectively determining that the child won’t live with parents)  and then the Placement Order/SGO/residence application be ‘uncoupled’ from the care proceedings and dealt with after assessments are done.

 

4. The judiciary are alive to the idea that when Parliament constructs the statutory framework for 26 week time cap, the exceptions need to not be based solely on complexity – the particular example given was of a first time teenage mother who just needs a longer period of monitoring and testing and learning, and whilst that wouldn’t be complex, there could well be a need for the case to go beyond 26 weeks. The suggestion was that the Court would need to consider and record on the orders why the timescale for that child went beyond 26 weeks. In order to present a balanced picture to the legislators, Justice Ryder was suggesting that Courts should ideally be recording that sort of thing on orders now, to build up a proper framework of what sort of cases genuinely need more time.

 

5. It did sound like the LSC might be having second thoughts about the Pandora’s Box of prior authority, and the senior judiciary are talking with them about possible solutions.

 

It was an interesting talk, delivered well, all questions given proper answers,  and even my cynicism wavered slightly. It does honestly sound as though they mean it this time – change is a’coming.

“I need two volunteers – you, and you” – how ‘voluntary’ is voluntary accommodation?

A consideration of the High Court decision in CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)  and whether it is now legitimate for a social worker to ask a mother to agree voluntary accommodation of a baby.  (answer, probably not)

 

I think it would not be unreasonable to describe this case as being to section 20 what Re X was to EPOs.

 

The case can be found here :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

 

Much of the case relates to a factual determination of applications for Care and Placement Orders, but the important bit of wider import can be found in the passages dealing with the mother’s case that her human rights had been breached by the Local Authority effectively pressuring her into agreeing section 20 voluntary accommodation of her child.

 

As far as I am aware, this is the first case dealing with the vexed issue of whether someone has genuinely agreed section 20 accommodation, and whether when the LA effectively pitch up and say “You’ve got to agree to accommodate” there is actually any element of choice involved.

23. Substantial discussions took place on the first day of the hearing (and had of course been in train for some time) which resulted in the local authority conceding the mother’s claim under Section 7 of the 1998 Act. The substance is recorded in the recitals to the order but in effect acknowledge two matters: first, that a Section 20 consent should not have been sought on 1st February 2012; and secondly, that such a removal was not a proportionate response to the risks that then existed. In the event the local authority accepts breaches of the Article 8 rights of both mother and child. The Order with its recitals is annexed to and should be read in conjunction with this judgment

24. The mother, in discussion about damages, asked that they be applied to the costs of her receiving the therapeutic input that has long been advised. The parties have agreed the payment of damages and other provisions which all accept amount to ‘just satisfaction’ of both these claims. It is important to stress that nothing in the subsequent discussion of Section 20 agreements or indeed anything else in this judgment is intended to impugn (nor should it be so read) the propriety of that resolution of the Human Rights claim to which indeed the court (since a minor is a party) specifically gives its approval.

 

So, that’s already quite a big deal – the Court (and the parties) accepting that there would be circumstances in which the LA seeking a section 20 agreement and accommodating the child as a result would be a breach of the mother’s article 8 rights and compensation of some kind is payable.

[Going back to my overarching theme of the law of unintended consequences, I hope HMCS are aware of the deluge of Emergency Protection Order applications that might flow from this sort of decision, as these s20 arrangements are often a stopgap or bridge to get into Court for an ICO hearing, which is now seemingly no longer an option]

It is important to note that there were genuine doubts about the mother’s capacity to agree to section 20 accommodation, as a result of her significant learning difficulties. At the time that the agreement was sought, the mother was also being asked about consenting to medical treatment (for herself, which would be life-saving) and to pain relief including morphine (for herself).

There must obviously have been some reservations about whether the mother was in a position to give valid agreement to accommodate the child under s20 of the Children Act 1989, but the Court go beyond that, and into a discussion of whether a Local Authority can properly invite a parent to give s20 consent if the circumstances are not such that a Court would authorise separation, before concluding that they cannot.

Obviously, that’s quite a big deal, and is something fresh in law. A parent can still ask for s20 accommodation, for whatever reason, but if a Local Authority is asking a parent to agree to it, they run the risk of a human rights financial claim if they did not, at that time, have the sort of evidence that would persuade a Court to sanction removal/separation.

  Prior to this case, as a matter of strict law, the Local Authority did not need to even have reasonable grounds to believe that the threshold criteria are made out, let alone that there was a reasonable prospect of persuading a Court to sanction separation, in order to ASK a parent to agree to s20 accommodation.

I think that there are plenty of cases – the obvious type being a mother who has previously had four or five children removed, but where the concerns are neglect-based rather than a risk of physical harm, where obtaining an EPO would be difficult and usually the first question asked by the LA lawyer of the social worker is ‘is mum willing to agree to s20 accommodation’ – it seems to me that asking that question now carries with it a degree of risk.

 

(The emboldening of key passages is author’s own)

 

27. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.

28. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.

29. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.

30. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers of the authority honestly believed that there were such reasonable grounds. In those circumstances a removal could be lawfully effected in one of four ways under the 1989 Act: by agreement under Section 20, by emergency protection order under Section 44, by the police under Section 46 or under an interim care order pursuant to Section 38. This range of options was considered by the Court of Appeal in A – v – East Sussex C.C. and Another [2010] 2FLR 1596. That case was not concerned with a removal at birth but it does stress the need for minimum intervention and the need to work in partnership with parents.

31. There is reasonably clear authority in respect of the compulsive powers under the Act. It is clear that court orders are to be preferred to administrative action and so Section 44 is accorded primacy over Section 46 – see Langley -v- Liverpool C.C. and Another [2006] 1WLR 375 especially per Dyson LJ at paragraphs 35-40. The regime and criteria for the use of Section 44 is fully set out in ‘X’ Council -v- B [2005] 1FLR 341 and X (Emergency Protection Orders) [2006] 2FLR 701 both approved by the Court of Appeal in A (Supra). The Court of Appeal have repeatedly returned to the subject of removal under an interim care order; for example in Re G (Interim Care Order) [2011] 2FLR 955 the authorities are reviewed and the conclusion reached that the court must consider whether the child’s safety requires removal and whether removal is proportionate in the light of the risk of leaving the child where she was.

32. On the facts of this case, it is most unlikely that any order would have been granted on 1st February. In saying that, it is of course accepted that had either the hospital required the discharge of the child or had the mother tried to procure it, an order would no doubt have been made. As it was, the mother was unable to leave and the hospital were not requiring discharge and it is probable that they would not have done so at least until the mother was fit for discharge.

33. In those circumstances the child was in a place of safety in hospital. All parties accept that in consequence the police would have had no power to remove under Section 46 and no order would have been granted under Section 44. Moreover, given the pre-birth plan and the mother’s co-operation in hospital, it is hard to see how immediate removal could have been justified let alone actually authorised under an interim care order.

34. Although many local authorities have policies and internal guidance in place in respect of post birth removals, the researches of very experienced leading counsel have not uncovered specific guidance in respect of the use of Section 20. There is none in publicly available guidance nor in any reported decision of the court. Since this removal, which would not have been sanctioned by a court, was in fact effected by consent, it is perhaps not surprising that the court is being asked to consider the proper ambit of Section 20 in this specific context.

35. It is necessary to state one obvious point which does not arise in this case but which, if not stated, will at least be thought by those inherently suspicious of local authority power: namely that it can never be permissible to seek agreement to do that which would not be authorised by order soley because it is known, believed or even suspected that no such authorisation would be given and in order to circumvent that position. That would breach all requirements of good faith and of fairness.

36. As I have already said, however, there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation. Three obvious examples occur: first, where the mother’s intention always has been and remains to have the child placed for adoption; secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce); and thirdly, where a parent whether by reason of supervening physical health or personal circumstance positively seeks accommodation of the child by social services. There will of course be others and the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority’s powers of response under Section 20(4) must be respected.

37. However, and whatever the context, Section 20 agreements are not valid unless the parent giving consent has capacity so to do. It is important to note that by Section 1(2) of the 2005 Act a person is to be presumed to have capacity unless it is established that he lacks it. Moreover, the effect of Section 1(4) is to prevent inferences of incapacity from the making of unwise decisions. Incapacity must be due on a “…impairment of, or disturbance in the functioning of the mind or brain” – Section 2(1). Capacity is issue and situation specific. It follows that not only may a person have capacity to make one decision but not another but also may have capacity at one time to make the very decision in respect of which he lacks capacity at another.

38. That can be seen in the context of this case. The fact that the mother could make decisions about surgery and pain relief does not indicate that she could make decisions about the removal of her child. Again the fact that before the birth or sometime after the birth she could make decisions about removal does not mean she could on the day of birth. This latter factor (the impact of the birth itself) is the basis on which Parliament enacted for example Section 52(3) of the 2002 Act in respect of adoption and Section 54(7) of the Human Fertilisation Act 2008 in respect of surrogacy.

39. Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the 2005 Act. Assistance is, however, to be found in Section 3 of the Act which provides by subsection (1) that a person is unable to make a decision if he is unable – a) to understand the information relevant to the decision, b) to retain that information, c) to use or weigh that information as part of the process of making the decision, or d) to communicate his decision… 4) The information relevant to a decision includes information about the reasonably foreseeable consequence of – a) deciding one way or the other, or b) failing to make the decision.

40. Applying that to the facts of the case, the social worker was the person finally to decide capacity and she had the views of the midwives. The key judgments to be made were probably the mother’s ability to use or weigh information surrounding removal and whether she understood that, if she refused, the child would stay in hospital with her. The first of those illustrates why a decision to agree to life-sustaining surgery is wholly different to a decision to consent to removal of the child. It is also clear that her attention was not called to the second matter at all.

 

A reading of paragraph 36 suggests (and there may be other interpretations) that separating a baby from a parent shortly after birth by way of section 20 ought to be a decision driven by the parent (that they genuinely want the child to be accommodated), and not the Local Authority seeking to cajole, influence, persuade (or if you’re cynical) browbeat, the parent into it.

 

And by implication, that such a separation, if the parent is not actively driving it, ought not to be done by s20, but instead by a decision of the Court.

One might think, very fairly, that this is right and proper, and that a parent ought not to be separated from their child because they are weak-willed or haven’t twigged that they have the right to say no when being pushed towards agreeing s20 accommodation by a social worker.

I find it a little hard to disagree with that, to be honest, but it is worth noting that this is quite a departure from where the law was prior to this decision.

Previously, it was incumbent on the parent to not say ‘yes’ to the accommodation being proposed, and for the LA to either issue or allow the child to remain with the parent. NOW, it will be incumbent on the LA to issue if they want separation and to tread extraordinarily carefully in any conversation about s20 accommodation for a baby.

It seems to me, from reading this judgment, that it might be lawful for a social worker to ask (with a huge amount of care, to explain what it means and what the possible consequences are and that the parent can say no) “do you want to voluntary accommodate your child?”  but NOT  anything like “I think it would be a good idea for your child to stay in foster care, do you agree?”

 

(I suspect that to get the wording bullet-proof on this, you’ll need something like the Miranda waiver so beloved of American cop shows… and that it will be so cumbersome that most social workers will just decide not to ask the question)

I think that this passage in particular, will be vital reading for social workers, local authority lawyers, out of hours workers, and those who might be representing parents either in the hours after the baby is born, or when a case pitches up to Court where the parents ‘agreed’ separation.

46. The following can perhaps be offered as the more important aspects –

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20 so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed: a) Does the parent fully understand the consequences of giving such a consent? b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent? c) Is the parent in possession of all the facts and issues material to the giving of consent?

vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask: a) what is the current physical and psychological state of the parent? b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends? c) Is it necessary for the safety of the child for her to be removed at this time? d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

Standing in the way of  (beyond parental) control 

A discussion of the little-used limb of the threshold criteria, and the interesting and deeply sad case of  Re K (A Child :Post Adoption Breakdown) 2012.   Plus, a judicial determination that Judges are not ferrets.  (I see how, with the ermine, folk might get confused)

The case can be found here (how I love Baiili)  :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/B9.html 

I have to say, in what’s coming up to eighteen years of care law  (my God, some of the babies I dealt with at the start of my career may now, hopefully, be going to university, and almost certainly will be legitimately buying alcohol)  I have only used the ‘beyond parental control’ limb twice; both times in relation to cases involving adoption breakdowns.

The attractiveness of it is that one does not necessarily need to apportion blame or find that it is poor or unreasonable parenting that has led to the significant harm; and it is for that reason that when it crops up, it tends to be in cases where a deeply damaged child is losing their second family. 

In this case, the Local Authority and the adoptive parents were at loggerheads about who was to blame for “Katie’s” parlous state. Without a doubt, the adoptive placement had broken down, and the relationship between “Katie” and her parents was very fraught.

This was an exchange of messages after Katie had been out of the home for a year

  1.  ‘Katie this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone.

You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented…

 

You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person.

 

We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’

 

  1. Katie’s response was robust. She replied,

‘you are NOT my mum and dad for starters!…you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’

[I pause here to say, that in the light of this sort of stuff, it is astonishing that the LA had such hostility towards the adoptive parents, and one wonders how much of the reasoning for that just didn't come through in the judgment. The tone might not be perfect, but it's far from awful or provocative]

Katie was diagnosed as having a reactive attachment disorder, and the Judge was deeply sympathetic to the suggestion that the efforts the parents made, which would have been kind parenting for another child simply did not work with Katie. At the same time, the Judge recognised that this was not in any sense Katie’s fault, but a symptom of her reactive attachment disorder.

[I know, you’re saying “get to the ferrets, I want to know about the ferrets”  - be patient. Your ferret-wishes will be granted]

  1. Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept Katie unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that,

‘the parents need to examine to what extent their well intentioned efforts to help Katie, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through Katie’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with Katie. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’

  1. Parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and Katie got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry…

48. Families who adopt children like Katie are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’

And that was really the crux of the problem. Everyone was agreed that a Care Order had to be made, but in order to make a Care Order, there had to be threshold. 

One would think, as an outsider, that the ‘beyond parental control’ was made for that sort of situation, and one might think that the entireity of this ligitation could have been avoided had a really bland threshold  (channelling those really bland ‘unreasonable behaviour’ petitions that are written by those rare divorce lawyers who are kindly and get the job done without fuss) been prepared.

Perhaps  “Katie has suffered significant harm as a result of absconding from her placement and being unhappy there, this harm has arisen from her being beyond parental control, which is caused by her reactive attachment disorder and not due to any conscious desire to cause harm on the part of the carers, or to cause trouble on the part of Katie. It is just very sad and unfortunate that this placement, which was intended to make everyone happy, has instead made them miserable”

Anyway, that’s not what happened.  The LA threshold document contained 39 allegations, some of which were deeply contentious, and the Court ended up trapped in a battle that ran thus :-

 The LA say that Katie is beyond parental control and that’s the fault of the adopters.

The adopters say Katie is beyond parental control and that’s not their fault.

Katie says she has been significantly harmed, but it’s not her fault.

(I again, go back to the honourable and worthy practice of being bland and inoffensive if it gets the job done)

The Court was not terribly helped by the expert on this particular issue (not because he was being unhelpful, but because he was speaking the truth. The legal niceties here were contributing to screwing this poor child up) :-

  1. Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when Katie conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.
  1. Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for Katie, Dr Richer’s opinion is that if the court makes a finding that Katie is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that,

’34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or Katie was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to Katie in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on Katie is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.

  1. In Dr Richer’s opinion, Katie does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if Katie is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

So, broadly, the Court had to grapple with, and find a resolution to, the question “Can a child suffer significant harm as a result of being beyond parental control without it being anyone’s fault?”

The answer, is “Yes”   and the Court sets out some excellent reasoning as to how it reached that answer.

  1. ‘the child’s being beyond parental control’
  1. That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.
  1. The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said.

‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense. It must be read together with the opening words of subs (2)(b) as follows: “…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.” The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection.

Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’

  1. The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18 March 1997 (unreported). Butler-Sloss LJ says,

‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’

  1. The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:

‘3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

And this was how the judge dealt with threshold  (note the coruscation of the way the LA had chosen to put the case. I can actually feel in my shoulder blades how counsel for the LA must have felt whilst the Judge read all this out)

  1. These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.
  1. I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.
  1. The parents concede that at the relevant date Katie was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that Katie is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to Katie being beyond parental control or to the reactive attachment disorder from which she suffers.
  1. It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that Katie is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.
  1. This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.
  1. I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since Katie’s arrival at Greendale, I am not reassured.
  1. If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since Katie has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on Katie. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?
  1. The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to Katie being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.
  1. Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting Katie. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that Katie has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused Katie distress. Miss McGrath challenged the mother that some of her responses to Katie had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to Katie should not be looked at in isolation. They have to be looked at in the context of the fact that Katie suffers from reactive attachment disorder of childhood.
  1. Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of Katie’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that Katie is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by Katie’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for Katie’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel…’

I accept Dr Richer’s evidence.

  1. Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that Katie is beyond parental control. They also justify a finding that Katie was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Forensic ferrets

I adore how the polite exasperation pours through these sentences. One can almost feel the Judge reaching for a bottle of Milk of Magnesia and being able to attribute this particular ulcer to this particular issue…

  1. Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.
  1. The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.
  1. In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.
  1. This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.

Banging heads together and “a very big ask”

An analysis of the Court of Appeal decision in RE W (CHILDREN) (2012)

 

[2012] EWCA Civ 999 

 

 

 

I have written about intractable and long-running contact disputes before on this blog, and no doubt I will again. 

(The fact that the Court of Appeal have begun to use Sky Sports slang like “a big ask” makes me hopeful for a judgment in the future saying that “The Big fella Stephen Cobb, he’s gone up for that submission on the law, risen like a salmon and it’s just not come off for him. He’ll be disappointed with that”   “True, but he’s a top, top, top, top lawyer Martin”  – or indeed   “If you offered him joint residence now, would he take it?” )

 

The Court of Appeal grappled with yet another intractable contact dispute case  recently in Re W. 

This set of private law proceedings were dogged by what seemed to be misfounded non-molestation orders against the father  (none of the allegations bar one very mild one being borne out), allegations of a grievous kind against the grandfather (which were not finally pursued by mother )  and of course, failure to comply with interlocutory contact orders.

 

To cut to the tl; dr  bit (as I know you private law family types have busy lives and those schedules about picking up Child A at 4.30pm from the McDonalds in Chiswick High Street on a Tuesday don’t write themselves)

 

The Court of Appeal seem to be stepping quite deliberately down a path of it being the responsibility of parents (both of them) to try to resolve a contact dispute without this level of hostility, and that there is something which looks like a duty and sounds like a duty, when holding Parental Responsibility to ensure that the rights of the other parent are respected.

 

And this passage is the nub of it :-

 

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.

 

 The awful drift in the case was highlighted here, by Lord Justice MacFarlane

 

16. Pausing there, it is necessary to note that almost four years had elapsed between F’s initial application for contact in May 2008 and the first substantive hearing in January 2012. Between those dates important decisions had been made by no less than five judges prior to the trial judge. It is to be particularly noted that the one judge who had heard the parties give evidence at the fact finding hearing ceased to hold the case soon after that hearing. F had not seen his children for nearly three years, since April 2009. The papers display a significant element of drift, not least the ten months that expired between the decision to instruct an expert and the filing of her report.

 

 

Let me draw further attention to that, because it is astonishing.  Almost four years elapsed between father applying for contact and getting a substantive hearing about it.

 

A child psychologist was instructed and recommended that the child undertake some desensitisation work about contact (which sounds like something from “The Manchurian Candidate” to me, but is no doubt a delightful and charming process involving no brainwashing at all)

 

 The Judge at first instance made the following points in judgment, before eventually deciding against any orders for direct contact :-

 

28. In setting out her findings and conclusions the judge made the following key points:

a) Each of the two parents love their children, are committed to them and are motivated by a desire to do what they consider to be in the children’s best interests.

 

b) The difficulties arise as a result of the relationship between the adults, rather than that between the adults and their children.

 

c) It is in the best interests of these children that they are able to have a meaningful relationship with both of their parents.

 

d) Dr G’s analysis of the reason for A’s stated refusal to see F is accepted.

The children’s behaviours are now well entrenched and significant work will need to be done with the children to reassure them they can have a relationship with F.

 

e) Dr G’s opinion that M has experienced trauma as a result of the relationship with F, and has continued to be traumatised by the court process, is accepted. There is a clear pattern of M acting in what Dr G describes as an “adversive reaction” at every stage when contact is ordered or attempted.

 

f) F has made “considerable progress” in therapy and demonstrates “profound change”. F, however, has a need to undertake a deeper level of work aimed at achieving empathy and understanding for the impact of his behaviour upon M.

 

g) F would be able to manage contact with the children appropriately, if it were possible to arrange this.

 

h) Dr G’s concerns about the use of the paternal aunt, HW, as a means to re-introduce F are accepted.

 

(Note that all of the concerns about Father related to the impact of his involvement in the child’s life on mother, rather than any direct evidence that he had harmed, or would harm,  the child)

 

The decision not to allow contact was contrary to the recommendations of the child’s Guardian, appointed through NYAS.

 

The Court of Appeal helpfully analyse the appropriate legal tests for making an order that refuses contact in private law proceedings to a birth parent, which this cynical and jaded hack thought might be something of a swipe at those in Parliament who think that the Courts don’t already operate on a presumption that spending time with two parents is best for a child where possible.

 

39. The second principle, that it is almost always in the interests of the child to have contact with the parent with whom the child is not living, has been approached by judges, both before and since the decision in Re O, as requiring the presence of “cogent reasons” for departing from that general principle. A classic statement of the need for cogent reasons appears, for example, in the short judgment of Waite LJ, from which Sir Thomas Bingham MR expressly quoted, in the case of Re D (A Minor)(Contact: Mother’s Hostility) [1993] 2 FLR 1. Waite LJ said “the judge properly directed himself by asking whether there were any cogent reasons why this child should, exceptionally, be denied the opportunity of access to his natural father.

 

 

And here

 

42. In Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 Munby LJ summarised the relevant ECHR case law as follows:

 

“a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

 

b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

 

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

 

d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

 

e) The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

 

f) All that said, at the end of the day the welfare of the child is paramount; the child’s interest must have precedence over any other consideration.”

 

43. Finally I would refer to the pithy, but nonetheless correct, distillation of this approach in the judgment of Ward LJ in Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 at paragraph 38 where it was said that “contact should not be stopped unless it is the last resort for the judge” and (paragraph 36) until “the judge has grappled with all the alternatives that were open to him”.

 

 (feel free to cut and paste any of that for private law submissions)

The Court of Appeal considered that the decision of the trial judge to refuse contact to the father was plainly wrong and should be overturned.

  

Most of this judgment is very case specific, and not terribly surprising. But it is the judicial comments about the RESPONSIBILITY element of  Parental Responsibility, which begin below, which make the case interesting and potentially significant.  (Underlining is mine)

 

 

45. Although the welfare principle in CA 1989 s 1(1) is, as I have said, the sole statutory directive to the court determining questions relating to a child’s upbringing, it is not the only statutory provision which bears upon the responsibility for determining and putting into action arrangements to be made for a child’s care within his or her own family. The Children Act 1989 does not place the primary responsibility of bringing up children upon judges, magistrates, CAFCASS officers or courts; the responsibility is placed upon the child’s parents. In the previous sentence I have deliberately used the plural of parent as it is now very frequently the case that the law provides that parental responsibility for each child will be shared by both parents.

 

46. In a judgment relating to the court’s determination of issues of contact, it is not common to refer to the meaning of “parental responsibility” set out in CA 1989, s 3(1). In my view, there is benefit to be gained from stepping back from a focus upon the court’s role and seeing the function of the court in the wider statutory setting within which the primary responsibility for determining the welfare of a child, and then delivering what that child needs, is placed upon both of his parents and, importantly, is shared by them.

 

47. In CA 1989, s 3(1) “parental responsibility” is defined as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. When there is a dispute as to the arrangements for a child’s care, much emphasis may be put by parents upon the one word “rights” within that all-encompassing definition. Such a narrow focus has no justification when one looks at the plain words of this clearly drafted and important section of the Children Act. The phrase under consideration is not “parental rights” but “parental responsibility”. Along with the “rights….powers…and authority” enjoyed by a parent come the “duties” and “responsibilities” which a parent has in relation to a child. The detailed rights and duties of a parent are not defined more precisely in the Act, but, in general terms, it must be the case that where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child.

 

48. These observations, which are founded upon CA 1989, s 3 and relate to the duties that attach to those who have parental responsibility, do not directly impact upon the decision that falls to be made in this appeal which turns upon the cogency of the material relied upon by the judge in deciding to refuse direct contact. I will however return to the topic of parental responsibility, and its importance in cases of this type, in a short ‘post-script’ at the conclusion of this judgment.

 

 

 

This seems to be implying, or importing, effectively a duty  or quasi-duty on parents to act responsibly towards one another for the benefit of the child.

 

 

Post-script

 

72. Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

 

73. The observations that I now make are part of a wider context in which the family

courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:

“[The parents] must put aside their differences … if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware

of what has been going on. … It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”

 

74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

 

75. In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be “a very big ask”. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

 

 

76. Where parental responsibility is shared by a child’s parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share ‘duties’ and ‘responsibilities’ in relation to the child, as well as ‘rights … powers … and authority’. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

 

77. Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. Dr G advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F’s interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.

 

78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.

 

79. The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.

 

80. Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case.

 

 

 

This would seem to be an important and persuasive authority to be used in implacable hostile cases, or where one parent is appearing to unreasonably block attempts to resolve contact.  

 

It isn’t terribly plain what the Court is supposed to do when one parent is not complying with this ‘duty’ or responsibility; which is the million dollar question, but it is interesting (to me at least) that there seems to be a judicial authority for the point that there is something akin to the LA’s “duty to promote contact”  for parents.

 

 

- Incidentally, because I am a pedant, and suddenly realised that we all know that the LA HAS a duty to promote contact, but couldn’t lay my mental finger on where,  I had to go and find it, so here it is:-

 

The Fostering Services (England) Regulations 2011, reg 14

 

Duty to promote contact

This section has no associated Explanatory Memorandum

  1. 14.           The fostering service provider must, subject to the provisions of the care plan and any court order relating to contact, promote contact between a child placed with a foster parent and the child’s parents, relatives and friends unless such contact is not reasonably practicable or consistent with the child’s welfare.  

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

 An analysis of the Government’s consultation on placement of siblings and contact post placement

 

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

 

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard

 

But I digress…

The consultation on sibling placements can be found here:-

http://media.education.gov.uk/assets/files/pdf/s/placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

http://media.education.gov.uk/assets/files/pdf/r/contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

 

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a  McDonalds with a shiny pound coin in hand  and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

 

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

 

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document  and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

 

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

 

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

 

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

 

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

It was Professor Plum, in the kitchen with a candlestick – no, it was Professor Plum AND Miss Scarlett….

A discussion of  the Court of Appeal decision in Re L-B (Children) 2012 . Or ‘when is a judgment not a judgment?’

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/984.html 

 

 

If you’re going to read one case this year, you should probably be more ambitious in your reading, but in any event, if you want one that is not necessarily hugely important but a real shocker, this one would be a good start.

 

It seems a silly little thing, but actually raises some good (if quirky points) and cuts to the root of what judicial decisions are.

 

The facts are very simple (and I assure you that this is not one of my imaginary judgments, though I wish I’d thought of it)

 

A Judge heard a fact finding hearing about non-accidental injuries.  At the conclusion of the hearing, the Judge indicated that the full judgment would be provided in due course, but that she had determined that the injuries were non-accidental and had been caused by father.  That was in December 2012.  It is important to note that this finding was recorded within an order made at that time.

 

Counsel for father invited the Court to deal with, in the full judgment, the matters as to fact and law that had been set out in father’s written submissions.

 

The LA moved forward with plans to place the children in the care of maternal grandparents (there were other difficulties with the mother, outwith the physical injuries) .

 

 

 

The perfected judgment was handed down on 15th February, and it was with some surprise that the parties heard the following passage :-

 

The perfected judgment was not in fact distributed until the 15th February. In that judgment the judge stated that she had “reconsidered the matter carefully” and had reached the view that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”.

 

In Lord Justice Thorpe’s beautifully understated prose,  “this was indeed a bombshell”

 

 

 

 

The judgment recorded the following:-

 

  1. 22.   However the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had not been alone with the child and might not have caused some injury.

23. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view.”

 

 

The issue before the Court of Appeal was twofold, in essence.  Was the Judge bound by her earlier decision that father was the perpetrator of the injuries or entitled to change her mind and make a Lancashire finding? (i.e her function in determing the fact finding ended when she gave a short judgment in December and made an order recording that father had been determined by the Court to be the perpetrator of the injuries)

 

  And if the Judge were not bound by her earlier decision, does the change of mind in any event render the judgment unsustainable?

 

 

Matters become worse – when trying to establish when the order in December was perfected and sealed, the following came to light:-

 

  1. The court seal on the order of 15th December is only partially legible and bears no date. When we asked for the date on which the court sealed the order no-one in court could answer the question. We accordingly proceeded on the common assumption that the order had been sealed prior to 15th February 2012. However, we required investigation over the lunch adjournment.
  1. At 2pm a further extraordinary story emerged. Manchester Civil Justice Centre does not keep a record of the date that orders are sealed. The order of 15th December was drafted by the Local Authority’s representative and circulated to other parties for approval. On the 6th January it was emailed to the judge for her approval. That email received no response.

 

31.The hearings on the 23rd January, 20th February and 23rd February all provided the obvious opportunity for the Local Authority, and other parties, to ask the judge either to approve or amend the draft submitted for her approval. However, it was not until the 24th February that the Local Authority noticed what was lacking and re-submitted the draft to the court. Seemingly the draft received the court’s stamp on that same day.

 

 

 

 

 

The Court of Appeal grasped the significance of this.

 

  1. This revelation altered the legal path. Had the judge a license to revise or reconsider on 15th February since the previously announced conclusion had never been made the subject of a perfected order: see for instance the judgment of Arden LJ in Re T (contact: alienation: permission to appeal) [2003] 1FLR 531 at paragraph 50 where he said:-

“It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order”

 

 

So, had the order made in Court in December naming father as sole perpetrator been sealed before the Judge had changed her view on the case and amended her judgment, that would have been outside the safety net of Re T, because the order would have been drawn.

 

 But in this case due to a catalogue of errors, the order was not sealed before the Judge changed her mind, and thus had the latitude to do so.

 

(A salutary lesson to us all, to record on the Court order on the fact finding hearing what findings were made AND to ensure that the Court seals them as soon as possible – though this issue is developed later, I still think it is good ‘belt and braces’ to do this)

 

The Local Authority, argued that in care proceedings, it is the final order as to Care Orders, Supervision Orders or no order that is  “the order” and that therefore the Judge can amend any judgment made at interlocutory stage providing that the “final order in the case has not been drawn up”

 

(That was an interesting argument in this case, but one which could wreak havoc in care proceedings generally if the judgment given in any fact finding was still ‘up for grabs’ at any stage thereafter until final disposal of the case, and I’m slightly surprised that the Local Authority wanted to set that particular hare running, given that the Re T point was already made about the legality of the Judge being able to change her judgment at any point before the order was drawn up (i.e sealed)  )

 

 

Thankfully for me, Lord Justice Thorpe determined:-

 

  1. It is important that we should not diminish the general importance of finality that judgment brings to human disputes. Judges appreciate that their findings as to disputed past fact and as to credibility are enduring and they are very conscious of the consequential burden and responsibility. The responsibility is magnified by the knowledge that once they have pronounced there is no opportunity for reconsideration or review.
  1. This principle is of particular importance in child protection litigation. This case well illustrates the havoc, the damage to the child and the family and the difficulties for the social work team caused by the judge’s departure from principal.
  1. Reverting to the question identified in paragraph 37 above, I do not draw from paragraph 21 of Munby J’s judgment, the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licenses a judge generally to amend his judgment as to past fact at any time before he has pronounced his judgment as to the future.
  1. In my opinion the purpose and objective of each of the preliminary hearings as to past events, and the welfare hearing to settle the future, are fundamentally different. The purpose and objective of the first trial would be jeopardised or lost if the judge at the second were free to re-write the history of past events

 

 

 

On the central issue of whether the Judge was entitled to change her judgment, Lord Justice Thorpe decided the following :-

 

  1. Furthermore, these skeletons reveal a tension between two lines of authority: the first establishing the principle that a judge is free to change the judgment until the resulting order is sealed (see Stewart v Engel [2000] 3 All ER 518), the second, that when an oral judgment is given, the winner is entitled to rely on its validity, only to be upset in most exceptional circumstances (in Re Barrell Enterprises [1973] 1WLR 19).
  1. I do not believe it necessary to consider these and other relevant authorities cited further, given the extraordinary facts of this case. I need only emphasise the clarity of conclusion announced on 15th December, the general assumption that the resulting order had been perfected in mid January, the general implementation of the judge’s conclusion, her adherence to that conclusion at the hearing on the 23rd January, the absence of any change of circumstance and the general slackness that left the December order unsealed until 28th February.
  1. Despite all the difficulties that were laid out in the supplemental skeletons I unhesitatingly conclude that the judge was bound to adhere to the conclusion of her December judgment and that her obligation to particularise it further did not permit her to enter a fresh and contrary conclusion. The result was not, as is submitted, merely to add back the mother: it was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator. The effect of the judge’s shift is to remove the simplicity of a sole parent perpetrator. However the mother was not a placement option. That remains between father and maternal grandparents. Whether the father is viewed as a possible or a proven perpetrator there is still a risk to be assessed.

 

And effectively rejected the Re T argument that the Judge could change her judgment up until the order is perfected, saying in essence:-

 

If a judgment seems to be incomplete or deficient, counsel has the obligation to invite the judge to expand or supplement rather than to rely on the deficiency as grounds for an application for permission to appeal. But that practice allows the judge only to expand findings or reasons in further support of his stated conclusions. It certainly does not permit a judge to reverse a previously stated conclusion.

 

And thus that Re T effectively allows a Judge to refine, polish and improve a judgment, to perfect it and to take on board issues raised by the parties, but NOT to reverse it.  

 

 

 (That leads to an interesting tension with some recent Court of Appeal authorities suggesting that with a deficient finding of fact judgment, counsel should furnish the Judge with a list of areas that need to be addressed and a judgment perfected, because it implies that whilst the Judge can bolster the judgment against appeal, he or she can’t actually be swayed by those identified deficiencies to the point of changing their decision)

 

 

The second Judge, Lord Justice Rimer, took a contrary view, that having come to a fundamentally different conclusion, the Judge HAD to amend her judgment and be allowed to do so, otherwise how could she sensibly follow her judicial oath? Having determined that father was NOT the sole perpetrator, but a Lancashire one, and the case potentially progressing in a way that would conclude with him seeking to care for the child, it must be wrong for the Judge to HAVE to proceed on the basis of findings she had no confidence in.

 

One set all.   Sir Stephen Sedley to serve for the championship.

 

Sir Stephen Sedley is obviously not a great believer in preserving tension, because he makes it plain in his opening paragraphs where his judgment is going :-

 

  1.  The history of these proceedings has been fully set out in the other two judgments. I can therefore go directly to the issue: did Judge Penna have power to substitute her second judgment for her first?
  1. In my judgment she did not. I reach this view on both procedural and substantive grounds.

 

74. It seems to me to be of little or no consequence that the order recording the first judgment had not yet been sealed in the court office at the date of the second judgment; or that a final order in the case still remains to be made and sealed. Justice cannot depend on the functioning of an overworked and underfunded court office. Although the sealing of an order gives visible finality to a court’s decision, it is the delivery of judgment which constitutes the decision. The drawing up of the consequent order is not unimportant (and before the days of mechanical recording and word processing was often critical), but it is not what gives finality to a judgment. Nor can “deeming” a perfected judgment to have been handed down on the day of its distribution (as was purportedly done here) somehow postpone its finality.

 

 

And then gives this lovely quote, which I fully intend to steal and use at the earliest opportunity.

 

“Finality is a good thing,” said Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60 IA 354, 361, “but justice is a better.”

 

 

 

 

 

And this is the paragraph which seems to settle things :-

 

Between 15 December 2011 and 15 February 2012, when she reversed her own decision, nothing had changed except the judge’s mind. I do not mean this dismissively. There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge’s mind – to justify reversal of a judgment

 

 

 

It is always harder teasing out the principles from an Appeal case when the second and third judgments are not  “I agree” and particularly where one is a dissenting judgment, but I think the following :-

 

 

  1. In a fact finding hearing, a judgment is made when the Judge indicates the decision and NOT when the order is sealed.  And certainly it doesn’t hang over until the final order is being made.

 

  1. The detail of a judgment may be perfected and refined and a Judge is entitled to take supplementary requests for additions and clarifications into account.

 

  1. That refining process (post announcement of decision and pre perfected judgment being produced) can not produce a reversal of the DECISION or fundamental change of direction unless there are exceptional circumstances  (and those have to be more than the Judge’s mind having been changed)

 

 

Where the story goes next is harder to tell. The Court dealing with the welfare hearing have to proceed on the basis that father is identified as the sole perpetrator, even though the Judge who made that finding no longer believes it to be the case.  If it is the same Judge, how can her decision at analysis of ‘risk of harm’ and ‘ability of the parents’  limbs of the welfare checklist truly proceed on the basis of the father having caused the injuries, rather than merely paying lip-service to that being the position in law?

 

If that were to be the tipping point that prevented father caring for the child  (i.e all things being equal, if there was a Lancashire finding, the child would be in his care but not as a sole perpetrator) how can justice really be done?

 

I think that this decision is right in law, and from a moral standpoint, it is right for mother  (it can’t be right that a Judge hearing the case in December takes her out of the equation and then puts her back in two months later)  but wrong for father  (because the Judge no longer has confidence in the finding she made naming him as sole perpetrator)

 

 

See everyone, law CAN be interesting.

I saw mummy kissing santa claus

 

An imaginary judgment, dealing with what happens when a key piece of evidence is found from an unwelcome source

 

 

This matter comes before me as an Appeal from a decision of the Family Proceedings Court to make Care Orders and Placement Orders in respect of three young children, who in time honoured fashion, I will label A, B, and C. The eldest is just four, the youngest is six months old, born within these proceedings. The mother of all three children is Miss X. The father of the older two children has played no part in these proceedings. The father of the youngest child is Mr Y.

 

The facts of the case before the Court were relatively straightforward and sadly not uncommon in the cases involving public law applications for children which are being heard throughout the land. The mother of the children was proceeding very well with her care of A and B until she formed a relationship with Mr Y.  Mr Y, although he seemed attractive, kind and attentive, had an unfortunate background, involving convictions for very serious sexual offences against children, he having only just been released from prison.  Understandably, the Local Authority concerned, once they became aware of Mr Y’s background and involvement with the family sought to provide mother with certain advice about the merits of this relationship continuing. Expert evidence was before the Court, and was unchallenged, that Mr Y’s history, psychological make-up and lack of empathy, insight and remorse for his proven past crimes meant that he was unsafe to be around children and that any timescales for treatment were well outside of the children’s timescales and the prognosis in any event was poor.

 

The mother and Mr Y separated, but of course, baby C had been conceived by then.

 

As often occurs in these cases, concerns arose as to whether the separation was genuine, or whether it was, in effect a placatory public gesture to satisfy professionals whilst clandestinely it continued apace. Allegations of this, together with such corroborating evidence as the Local Authority were able to assemble was placed before the Family Proceedings Court and tested appropriately in evidence.

 

Thus far, there is nothing exceptional about the case, and this Court would be exceedingly reluctant to interfere with any findings made by the Family Proceedings Court about the factual matrix of the case or whether the relationship was, or was not continuing.

 

The unusual facet of the case, and the impetus behind this appeal, is that after the parents had given their evidence, but before the Guardian had given hers, the case concluded for the day, with the intention being to reassemble the next day.  One of the three Magistrates who had been hearing the case,  left the Court building and happened upon two adults locked in what can best be described as passionate and tender embrace. It was with some understandable embassment and chagrin that this Magistrate came to the opinion that these adults were Mr Y and Miss X, and that far from having been completely separated and with no intention to spend any time together, as had been their sworn evidence, there was a passion and intensity about the embrace that called that into question.

 

The next morning, the Magistrate concerned, who I will label Miss J, immediately notified the Legal Advisor of this. In that consultation, they resolved that Miss J should not discuss this in any way with the other two magistrates and that the issue should be put to the parties in order that representations could be made about the way forward. The Legal Advisor suggested to Miss J, who took this advice, that she could no longer sit as a Magistrate in resolving this particular case as she was now potentially a witness of fact.  Miss J prepared a short document setting out what she had observed.  It was very plain that Miss J was advised not to discuss the issue with the other Magistrates, and that no discussion of the issue other than the formal representations (and if necessary, evidence) given in Court should take place, to do ones utmost to preserve the integrity and impartiality of the other Magistrates.

 

If I may say so, I think that the Legal Advisor in this case acted very sagely in the most exceptional of circumstances. It is difficult to see what more she could have done.

 

When the document that Miss J had prepared was circulated to the parties, two camps effectively formed. As one might expect,  the mother and father sought an adjournment of the case with there to be a re-hearing at which Miss J could give evidence before a completely fresh bench, untainted by any association with Miss J.  The Local Authority and Guardian pointed out that the case could proceed with two magistrates and that Miss J could give evidence, which would be assessed by the bench with the same impartiality and scrutiny as any other witness and the parents recalled, adding that any other bench that could be assembled in due course to hear the case would be as likely as these two Magistrates to have sat with Miss J as some time or another, it being the nature of the Family Proceedings Court that rather than a fixed block of three Magistrates always working together, there is more of a ‘mix and match’ approach.   The decision was taken to continue, and the parents representatives quite properly registered their disquiet about the unusual situation and that they reserved the right to seek an appeal of any final adjudication, not least because of the wider public interest issues that the case had thrown up.

 

In relation to the way the Court approached the evidence of Miss J, I can find no fault with that.  A proof of evidence was available to the parties and all had seen it in advance of her giving evidence. It was made plain that she was giving her evidence as a member of the public who had witnessed something (she having left the curtilage of the Court, she was no longer effectively Miss J, Magistrate, at the time, but Miss J, person).  The Legal Advisor ensured that a Turnbull direction was given in Court before the evidence was heard.

I remind myself at this point that the Court of Appeal have previously given a decision in which it was made plain that Turnbull directions on the risks of misidentification of a person is not limited to criminal trials but applicable in a family case where there is eye witness evidence about a specific individual being alleged to do certain things. This particular Legal Advisor was familiar with that case. It is a shame that more people are not.   RE A (CHILDREN) sub nom EH v (1) X LONDON BOROUGH COUNCIL (2) AA (3) REA & RHA (BY THEIR GUARDIAN) (2010) [2010] 2 FLR 661

In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull[1977] QB 224 in which Widgery CJ stated at 228:

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear term the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special
reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them”. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
“Recognition may be more reliable then identification of a stranger but even then when the witness is purporting to recognise someone whom he knows,
the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. “

 

When the Family Proceedings Court, sitting as a bench of two, made their determination on this factual issue, they took considerable pains to analyse each and every point of the Turnbull principles in their determination. They made the finding that the evidence of Miss J was preferred, following that careful analysis to the evidence of Mr Y and Miss X, and that the couple on the day of their substantive evidence declaring effectively undying separation had been observed in the throes of considerable and lengthy passionate embrace. The Court made other findings about the relationship based on the allegations. I note, and it is of some significance, that two of the five allegations made by the Local Authority about occasions when the parents were suspected to be together were not made out because the Court felt that there was not sufficient evidence to be satisfied about them, and the Court did not make the mistake of conflating the likelihood of  (a), (b) and (c) having been true, just because they had found a significant (d) to be true.

 

In this appeal, no criticism is made of the way that the Magistrates drew up their reasons, nor that they took into account something that was irrelevant, or failed to give sufficient weight to something that was relevant. Clearly, with one eye on the likely appeal and the need in this case because of the circumstances to be rigorous, the Facts and Reasons are an exemplar of their kind.

 

Counsel for the appellant mother, makes effectively one point in this appeal and it is a compelling one. I am grateful that a ‘scattergun’ approach was not taken, but the issue confined to the one which is the crux of the case.  Does this decision satisfy the Sussex Justices case that justice must not only be done, it must be seen to be done.

 

Could the two Magistrates determining the case, no matter how much care and attention they gave the matter and no matter how hard they strove for neutrality and impartiality, really appropriately weigh and sift the evidence without giving a disproportionate weight to the fact that one witness of fact on a key disputed issue had previously been sitting by their side on the case as they heard live evidence?

 

Counsel for the appellant makes the strong case that if this were a criminal trial, and the witness of fact had been a member of the jury who perhaps overheard some material evidence being talked about by a defendant, the jury would be discharged and the case reheard.  The Joanne Frail case, where the juror had been in communication with the defendant on Facebook whilst the jury were still deliberating  was referred to

ATTORNEY GENERAL v (1) JOANNE FRAILL (2) JAMIE STEWART : R v KNOX (2011) [2011] EWHC 1629 (Admin)  as was the case where a juror had been flirting with a police officer giving evidence in the trial

R v (1) JOHN CORT (2) BRIAN FARRELL (2011) [2011] EWCA Crim 1597  and indeed the case where an officer of the Court involved in jury selection had been socialising with members of the jury

R v CHRISTOPHER JOHN BURCOMBE (2010) [2010] EWCA Crim 2818  and R v MICHAEL WILLIAM MCDONNELL (2010) [2010] EWCA Crim 2352 where the jury had searched for information about the defendants on the internet.

 

 

All of which chiefly made me very relieved that I no longer conduct criminal trials, as they seem to be a hot-bed of socialisation, fraternisation and social networking pitfalls, with the court and jury room being more akin to some form of speed-dating evening than the administration of justice.

 

I consider that it is right and proper to draw the distinction here between a juror who has set out to act inappropriately (whether through ignorance or sheer bloody-mindedness) and a Magistate who here happened to stumble into possession of material evidence which made her a witness. Had she endeavoured to follow Mr Y or Miss X and observe them, or visit their home to watch them, then I would be in no doubt whatsoever that her conduct would be reprehensible.  There is, in my judgment, a clear bright line when a person is sitting in a judicial capacity between hearing and testing the evidence that is presented in Court and endeavouring to find out more outside the Court. The latter is not acceptable. By way of illustration, it would be appropriate for a Judge to indicate to the parties that they seek to read a specific piece of research referred to in Dr Jinglebones report, but not to search on the internet for criticisms of Dr Jinglebones or photographs illustrating his vivid social life and partiality towards tequilla. There is a clear, bright line between hearing the evidence that is presented in court and making ones own enquiries, and a Magistrate or indeed Judge would step over that clear bright line at their own peril.

 

However, here it is different. Miss J had not desired or intended to gather evidence, rather it was a matter of happenstance  – in the altered words of Malvolio  “Some are born with evidence, some achieve evidence and some have evidence thrust upon them”.  She turned a corner and saw what she saw and could not unsee it.  Nor could she have ignored it. Nor could this information have rightly been set to one side or supressed. It was material evidence, and it was deeply unfortunate that it was Miss J who happened to fall upon it, rather than the social worker or the Guardian. It could have been worse – it could have been counsel for either of the parents, which certainly would have led to the need to a rehearing with fresh counsel.

 

The appellant makes the second point, arising from this, that even if there is no culpability, the impartiality of the Court is tainted inexorably by one of the tribunal giving evidence. They submit, wisely and correctly, that if this had been a County Court judge who had made the identification, mistaken or genuine, then it would have been impossible to continue the case, and that the parents should not be prejudiced by the mere happenstance that the Family Proceedings Court have three Magistrates allowing for an element of ‘redundancy’ whereby one can drop out and the hearing continue.

 

This is clearly a difficult case, and as the well known axiom has it  (though I have not found authority for it)  “hard cases make bad law”    – the closest authority I have identified arises here :-

 

R v National Insurance Comrs, Ex pp Hudson [1972] AC 944, 966, Lord Reid also observed,
at p 966: “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair the certainty of the law.”

 

I am certain that in this case, it was appropriate for the Court to consider the evidence of Miss J, that it was incumbent on them to consider the problems of eye witness identification evidence and give themselves a Turnbull direction, which they did. I am certain that Miss J could not play any part in the decision-making, being a witness of fact, and she did not. I am certain that had she discussed the case in any informal sense after becoming a material witness, the case should be reheard, and I am satisfied that this did not happen. I am satisfied that if Miss J had sought out this evidence deliberately, this would have indelibly tainted the entire bench and the case would need to be reheard, which she did not.  I am satisfied that the Court would have to give very careful and compelling reasons for accepting Miss J’s evidence to remove any lingering suggestion that her evidence was preferred because of her status, and I am satisfied that the Court did so.  I am completely satisfied that the Court were not biased, and that they did everything possible to remove any suggestion or impression of bias.

 

All things being equal, if one had a time machine and could revisit that hearing, I would myself have preferred a decision that the case be transferred to the County Court and for a circuit judge (who would be not associated with miss J) to hear all of the evidence and determine the case. But it is not, of course the role of the appeal court to substitute its own judgment for that of the Family Proceedings Court, but to analyse whether that decision was plainly wrong. It is my conclusion that a spectrum of possible decisions about the way forward existed for the Court – they decided to proceed with a raft of safeguards and in my determination they were not plainly wrong to do so.

 

Should a situation arise in the future where a Magistrate or Judge finds themselves in the unfortunate position of having to give evidence in the same case, however, I would not wish this case to be authority for any principle that they should not recuse themselves. With the benefit of hindsight, a recusal and rehearing would have been a better approach and more in keeping with the principles of R v Sussex Justices,  and one would hope that should this situation ever arise again, a rehearing with a fresh tribunal would be the outcome.

 

I therefore dismiss the appeal.

 

 

 

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