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Monthly Archives: March 2013

What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   http://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   http://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

David North – a peculiar story you have probably never heard of

Let me take you back to 1950s America, and specifically Illinois.  At EasternIllinoisStateTeachers College, classes were run in Home Economics.  Twelve students would live in a home on campus and learn how to run a house and how to manage the domestic science aspects of doing so. 

 One of the College administrators [Dr Schmalhausen – and yes, if you are thinking that this name reminds you of Allo Allo, you may be right *] had the bright idea that if there was an infant to care for, that would be a really good way of replicating the task of a mother caring for a child and working the domestic duties around that.  (This was the 1950s, remember, and those sorts of concepts which seem overtly sexist to us now, were not viewed as peculiar at those times)

 

*[It was Von Smallhausen, Herr Flick’s sidekick…]

 von smallhausen

 

The College duly acquired a baby, who would otherwise have been given up for adoption; the very first one was called “Margaret Ann” and was given the surname “North”  – another later followed, this time a boy , who they called “David North”.  This was in 1952.

 

By the way, in case you are thinking that the baby came into the campus for a few hours a week, or a couple of days a year, no, this infant lived there full time, and all of their needs were met by the students.

 

 

So these infants lived in the campus homes, and received care from the twelve students who would be studying domestic science that year. There would be three students each academic quarter, so the child would have three primary carers and then acquire three brand new ones after three months, and so on. Nobody really seemed to have given any thought to what being used as a teaching prop would do for a child who needed a permanent and stable home.

 http://rmc.library.cornell.edu/homeEc/lg/C9_5_Domeconpg130.htm

 

[Note in this prospectus the proud boast that “Each of Cornell’s two practice departments is equipped with a real baby”  - also that the babies were given nicknames and weren't even addressed by consistent names]

 

This came to the attention of Illinois child welfare services, and their boss Roman Haremski  [yes, that does look a lot like Roman Harem… this story is packed with good names]  after a newspaper article appeared, which was generally positive about the scheme, and they were exceedingly unhappy about the arrangement.

 

This is what the paediatrician who looked at the case thought   “The infant boy is in excellent physical condition. He has received physical care which is far superior to that given in the best foundling homes and in most American homes. Furthermore he is loved, which is the basic factor in the healthy developmental environment. This child has benefited tremendously from the good start he is receiving and will show it for years to come…”

The controversy was a clear two sided argument. Haremski and the Child Welfare Services believe that a child’s environment in the first year of life was pivotal to its development of character. They argued that being separated from its mother would be damaging to a child’s personality, but to be surrounded by twelve mothers would be even more confusing. Haremski thought the baby was being used like a textbook as an experiment in the study of home economics. He was also extremely concerned with the lack of a male father figure in this baby’s situation, especially for a baby boy. He threatened to intervene legally, arguing that Eastern Illinois State Teacher’s College did not hold a license to act as a child welfare agency.

Dr. Schmalhausen’s argument countered each of Haremski’s points. The love and care the baby was receiving from its “twelve foster mothers” would be much less damaging to his overall personality than being returned to its unwed mother only to be placed in a group home. She indicated that the problem of not having a father figure would still exist in either situation. David’s condition on campus at least provided him with the care of doting mothers

 

The nation’s media, including Time magazine, the New York Times ran with the story and it became something of a national controversy. [With the passage of time, it seems a bit inconceivable now that there were people stacking up behind the College and feeling that it was a good thing , but there was a division of opinion as to who was right]

 

Despite all this controversy, baby David stayed at the College and his care continued to be provided by batches of four mothers at a time, for three month periods, before having a fresh batch of four student mothers.  Because the College had entered into a private arrangement with David’s birth mother, it was not an adoption, and they did not need the licence.  The furthest the Illinois Welfare department was able to go was to say that they would not assist the College in finding any more babies for the teaching programme.

 

More babies were acquired, as it was newborn infants that the College really wanted, and even after the national publicity, it wasn’t until 1960 that the College stopped having live babies as a teaching aid for their students.

It doesn’t seem that anyone ever did any follow up studies on the children who spent their infant years receiving primary care from 12 different carers who would come and go, and were providing this care as part of their education rather than any desire to provide the infant with a home. 

Having said that, the medical studies that were being done in America  about whether children were being screwed up or damaged were not terribly great or accurate in the 1960s  – for example David Reimer (who suffered genital damage in some surgery, and a psychologist, John Money, recommended that he be instead raised as a girl and never told that he had been born a boy. This was exciting for the psychologist, because he believed that gender identity was entirely a product of environment and learned behaviour and even more so because David had a twin brother as a control.)

 John Money over many years wrote all sorts of research on how gender identity is not innate or biological but learned… unfortunately, John Money was utterly wrong about how wonderfully easy it would be for poor David to adjust to this fundamental change.  That didn’t stop his theories on the malleability of gender being the prevailing medical view for several years because he was misreporting how awfully the experiment was actually playing out for this poor child, and indeed his sibling.

 http://www.shb-info.org/reimer3.html

Ambassador, with these Brussels 2 applications you are really spoiling us

The potential impact of the High Court decision in Re T (A Child Article 15 of BR2) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/521.html

An interesting  (if somewhat dry) one, brought about by the intervention of the Slovak authorities in care proceedings in England.

It seems (and one can understand why when one looks at their recent experiences) that the Slovak authorities aren’t that taken with the way care proceedings concerning their citizens are being conducted in England.

In this case, both parents were Slovak, although living in England, and the child had been conceived in Slovakia. In fact, the Slovak authorities had had the mother in care in a children’s home,  become aware that the mother was pregnant and sought to place her in another children’s home that had special provision for underage mothers.

The mother ran away and came to England.

3. Shortly beforehand on 19 May 2008 a court in Michalovce, Slovakia ordered that the mother be placed in a crisis centre following certain allegations by her against her stepfather and mother. In July 2008 the relationship between the mother and father began. The mother was then aged 13, the father 16. On 14 January 2009 the Michalovce District Court made an order placing the mother in the children’s home in that city.

In July 2011 the mother fell pregnant and on 30 November 2011 the Michalovce District Court ordered that the mother be transferred to the children’s home in Kosice which had a special unit for underage mothers. It was from there on 29 February 2012 that the mother ran away with the father and travelled to this country which she entered on false papers. The mother and father went to the town where her family were living, and it was there on 22 April 2012 that T was born.

4. It was not only on account of the mother’s young age that the local authority was concerned for the newly born infant. Almost from the moment of their arrival here in 2008 protective measures had been taken in relation to the mother’s siblings and this led to all or some of them being made the subject of care orders in 2010. I have not been given the details. At all events the local authority undertook a core assessment immediately following T’s birth and only allowed the mother to take him to her own mother’s home on discharge from hospital on 4 May 2012 on the basis that the mother signed a “contract of expectations”. Unfortunately as a result of various intra-familial disputes the placement broke down and ultimately on 18 May 2012 the mother and T moved to a Mother and Baby Unit for a 12 week period of assessment pursuant to an agreement made under section 20 of the Children Act 1989.

However, on 23 May 2012 the mother left the unit leaving the baby behind, and although she returned the following day she left again finally on 27 May 2012, complaining that the place was like a prison. Care proceedings commenced in England, and by the time of this application had reached the point where all assessments were completed, and the recommendation of the Local Authority in England, and the Guardian was that the child should be adopted.

The Slovakian authorities sought the return of the mother (and also later the child) to their country, so that decisions could be made in Slovakia relating to them both, and made an application under Article 15 of Brussels 2 On 19 July 2012 the Director of the children’s home in Kosice wrote to the local authority stating “our interest is that the mother be returned to the children’s home, as she is entrusted to our care by the courts”. Later the authorities in Slovakia expanded this to seek the return of T also.

On 27 September 2012 the children’s home informed the Slovakian Central Office of Labour, Social Affairs and Family (which I take to be the relevant government Ministry) of the circumstances of the case and on 3 October 2012 the Slovakian Central Authority received a report from the Ministry about the mother and T. The Slovakian Central Authority contacted the Central Authority (ICACU) here on 5 October 2012. On 18 January 2013 a lengthy letter entitled “Intervention of the Slovak Central Authority” was received by the court authored by Andrea Cisarova. This has been supplemented by two further detailed submissions dated 21 February 2013 and 8 March 2013.

In these documents the Slovakian Central Authority forcefully argues that under EU law, equally applicable in Slovakia and this country, the mother and T are both habitually resident in Slovakia; the mother is the subject of an order which is entitled to recognition and enforcement here; and that this is a case where a request should be made by this court under article 15 of Regulation Brussels II Revised[1] for a transfer to the Slovakian courts of the proceedings concerning T.

Like most lawyers who don’t specialise in international law, I hear the phrase “Brussels II” and have to suppress a shudder. It normally means that things are going to get fearfully complex.

In this case, what it meant was that the Slovak authorities were asking the English Court to relinquish the case over to them. The mother was agreeing to the order of the Slovak courts that she return and live in the children’s home.

Article 15 provides

9. “Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or

(b) request a court of another Member State to assume jurisdiction …

2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court’s own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph

3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.”

Mr Justice Mostyn, who heard this case, picked over the existing sole authority in English law on article 15 [AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517 ]   and drew from it the three questions that had to be answered by the Court who were dealing with the application

10. i) First, it must determine whether the child has, within the meaning of Article 15(3), “a particular connection” with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

ii) Secondly, it must determine whether the court of that other Member State “would be better placed to hear the case, or a specific part thereof”. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court “is in the best interests of the child.” This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

11. In paragraph 36 Munby J pointed out that even if affirmative answers were given to all of the three questions there remains a discretion whether or not to request a transfer. However he observed that if all the questions were answered affirmatively it was difficult to envisage circumstances where it would nonetheless be appropriate not to transfer the case.

He then went on to consider the application of article 15 to care cases and distilled the following principles

24. ) Article 15 applies to public law as well as private law proceedings.

ii) As a precondition the court must be satisfied within the meaning of Article 15(3), that the child has “a particular connection” with the relevant other member state.

iii) The applicant must satisfy this court that the other court would be better placed to hear the case (or a specific part thereof). In making this evaluation the applicant must show that the other court is clearly the more appropriate forum.

iv) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses.

v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result.

vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration.

vii) In making the best interests analysis at (vi) the court will not embark on a profound investigation of the child’s situation and upbringing but will dwell in an attenuated inquiry upon the sort of considerations which come into play when deciding upon the most appropriate forum.

What was particularly interesting in this case was that the Slovak approach was for mother and child to live together, albeit in a children’s home and given a long process of assessment and testing and support with a view to keeping the family together long-term, whereas the approach of the English professionals was that the mother could not meet his needs and keep him safe and that adoption was the only viable plan.

Thus a transfer to a different jurisdiction was not merely having a different Court with different laws determine the case, but a profoundly different outcome for the child. The direction of travel for either jurisdiction was very clearly laid out.

The High Court looked at the arguments put forward by both parties

31. The Slovakian Central Authority, supported by the parents, argues for a transfer for the following reasons:

i) Both parents and the child are Slovakian citizens. The habitual residence of the mother is Slovakia. The child’s habitual residence is, she argues, Slovakia.

ii) The parents only speak Slovakian. Any proceedings in Slovakia will be in their own language. Similarly any further assessments in Slovakia would be undertaken in their own language.

iii) The mother has agreed to return to Slovakia and to the children’s home to which she has been committed by a court order

iv) T has not been put in a permanent placement and a further move for him will have to take place in any event.

32. The Slovakian Central Authority has outlined the plan for the mother and T were they to return to their native country. They will be placed in the children’s home in Kosice where they will live in a small community with at most four other under-age mothers with their children. They will be cared for 24 hours a day by six child care professionals who will help them to provide care for their minor children. In this way the minor mothers learn to care for their children to create emotional bonds and to achieve parental skills. Psychological and special pedagogical care will be provided and the minor mother will have the opportunity of completing her education.

33. Of course it is accepted by all that this process is fundamentally one of assessment and that were a transfer to be made the court in Slovakia would have to decide whether reunification was possible in the long-term or whether T would have to be permanently placed with alternative parents.

34. In my opinion the plan I have outlined above best promotes the possibility of preserving this child’s Slovakian and Roma heritage. In his skeleton argument counsel for the child stated that “whilst of course there are additional welfare factors because of T’s Slovakian heritage, fundamentally he is a child like any other”. This struck me as a profoundly culture-blind statement. I do regard the promotion of this child’s heritage as being of great importance and I do not consider that the case of either the local authority or the Guardian has sufficient regard to that factor.

35. Additionally, I would observe that it is doubtful that either of these parents or indeed the child is lawfully present in this country under the terms of the Immigration (European Economic Area) Regulations 2006 S.I. 2006 No. 1003.

36. Leading Counsel for the local authority argues that the Slovakian plan would not be in the child’s best interests because it represents but a single inflexible option. This was the central part of his argument and so in fairness to him I set out the relevant paragraphs of his skeleton (as modified in oral submissions) in full:

The transfer of jurisdiction proposal carries with it only one plan, only one option.

The type of assessment proposed under the Slovak plan has already been tried at the Mother and Baby Unit. The Mother left the unit to be with the Father.

Previously she had run away from the Mother and Baby unit at the Kosice Children’s Home to be with the Father. She has consistently in Rotherham refused offers of accommodation on her own because she wants to live with the Father.

The prospects of her remaining without the Father at the Kosice unit for assessment are not sufficiently good to make it in the Child’s interests to try this because of the damage that will be done to him in the process.

The Child has a good, healthy attachment to his foster carer. He is at the age when he has the opportunity to transfer that attachment to another care-giver. If he is enabled to transfer this attachment to his new permanent carer, the prospects for his emotional wellbeing are good. If he is not able to do this successfully, the risk is that he will shut down emotionally and permanent damage will be done to the future prospects of any successful attachment to any carer.

The Slovakian plan involves the Child being placed with his Mother as his primary carer, albeit with professional supervision.

The observations of contact between the Child and his Mother show that he will be seriously distressed if he is placed in his Mother’s full-time care. Despite her best efforts, she is unable to soothe and calm him. He will often not accept care, such as feeding, from her. If the Mother and the Child are put in this position full-time, the distress caused to the Mother is likely to make her chances of caring successfully for the Child even less.

The Mother herself believes that the best way forward would be for Child to be in foster care initially in Slovakia in order to build up contact with her.

The Child suffers from herpes which flares up from time to time. The stress of leaving his foster carer and being placed in his Mother’s care is likely to cause his herpes to flare up. This will add to the difficulty of caring for him and the stress caused to the Mother. If he needed hospital treatment in Slovakia, the disruption to him and stress will be increased.

The further assessment is, in any event, unnecessary given the assessment work which has been done with the parents already. There is already sufficient information before the Court to establish that the parents cannot offer the Child the care he needs.

It is not in his best interests to take risks with his long term emotional welfare and ability to form attachments to a permanent carer and to cause delay in the final decision-taking for him. The prospects of success for the Mother/ Parents are not sufficiently good to warrant taking those risks.

37. It can be seen that this argument comes very close to the profound best interests enquiry concerning the child’s future care which Lady Hale emphatically said should not happen in Re I. Basically, it is a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen. I completely disagree with this approach. The analysis of best interests only goes to inform the question of forum and should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.

38. It can fairly be said that the local authority witnesses on events in T’s short life are all here speaking of events here and that this militates in favour of this court being the more appropriate forum. However, it is obvious that if this case is transferred to Slovakia there will not be any substantive court case as the parents will surely accept the plan of the Slovakian authorities. Only if that further assessment and attempted reunification fails is there likely to be a contested case in Slovakia; and that case will surely be focusing on the most recent Slovakian assessment and the reasons for its failure rather than historical assessments over here.

39. I conclude that all the requirements of article 15 when read conformably with the principles set out by Wilson J are satisfied in this case and that the transfer request should be issued. The proceedings will be stayed but T will remain where he is under a sequence of interim care orders made administratively until the Slovakian court makes a decision about his interim arrangement. Of course in the event that the Slovakian court declines the request then the matter must be restored to this court for final determination.

And of course, the significant matter there is the Court’s determination that it would be for the Slovakian authorities to determine whether the child could remain with the mother, and that in the event of a dispute on that, and proceedings being issued it would be the Slovak assessment and evidence which would be relevant, and not those matters which had occurred in England. The case was duly transferred to Slovakia – although the child had never spent a day in Slovakia and was not habitually resident there, Mostyn J found that the child had NO habitual residence anywhere, and was thus captured by Article 13.

[It was pretty clear from the judgment that although Mostyn found himself to be bound by the Court of Appeal authority in ZA & Anor v NA [2012] EWCA Civ 1396 that a person or child cannot be habitually resident in a country they had never lived in, he wasn’t of the same opinion, and favoured the dissenting judgment of that authority. This child of course, had been living in England for 11 months by the time of the judgment…]

This is a peculiar one – mother was really giving up her life here to go and live in a restrictive environment in Slovakia in order to keep her child with her, although she had herself fled that environment previously.

So, the question arises – if you are representing parents in care proceedings who are from another jurisdiction [where Brussels II applies], and they would be willing to return to that jurisdiction, is it worth approaching that embassy to see if they would be willing to apply under Article 15 to take over the case?

It will depend very much on the circumstances, but is probably something which needs more consideration than one might normally give it. If the Courts are willing to move the case over when the care plans are so divergent, it may be a way of achieving parent and child being together that is more effective than challenging the making of orders in the English courts.

Does a child have a RIGHT to give evidence? Does anyone?

The Court of Appeal decision in Re P-S (Children) 2013

An interesting case. A child whose future was being determined by the Court had a different view to that of the Guardian representing him, and was competent to instruct his own solicitor. He did so. He met with the Judge, who obviously did not conduct that meeting as any form of forensic exercise.

 He later became distressed and unhappy and applied through his lawyer to give oral evidence, so that the Court could directly hear his views on the plans being considered and his strong opposition to those plans. The other parties made it plain that they would not cross-examine him, so his evidence would be instead a platform for his direct expression of his views.

 The Court refused that application and went on, in due course, to make the orders that the young person had been opposing.

 The appeal was therefore on the point of whether the child had a RIGHT to give evidence, if he was competent to do so, or whether it was a case management decision in the discretion of the Judge.

 And additionally, whether, when the child is of sufficient age and understanding, should the “wishes and feelings” portion of the Welfare Checklist, be weighted such that it is a rebuttable presumption in favour of their wishes being complied with.

 

On 16th November 2011 M made his application for permission to attend to give evidence by video link “so that the strength of my feelings can be made clear to everyone”. He explained that he would be “extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome.” He also said that “I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return.” That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.

 

 

The judgment on M’s giving evidence

10. The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.

11. She made these findings:

“12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …

13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence.”

12. She noted Mr Blakes suggestion that there is “value added” to his written statements through the court being able to assess Ms subjective viewpoint and the strength of his feelings through his demeanour. But she held that it was inevitable that he would want to do what he thinks is right by his Mother and will want to put right by what he Judgment Approved by the court for handing down. P-S (Children)

says matters over which he has no control and for which he is not responsible. Her conclusions were:

“37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …

38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …

39. I am prepared to accept, both for the purposes of this application and for tomorrows hearing that M would like to return to the care of his Mother, and if that involves As father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.

40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.

41. If there is really no evidential matter on which Ms evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes.”

 

 

The Appeal considered the UN Convention on the Rights of the Child, particularly Article 12

 Article 12 of the Convention provides:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” (I have added the emphasis)

 

How successful have we been in implementing Article 12? First, the child is automatically a party to the care proceedings by virtue of FPR 12.3(1). Secondly, there is provision for the representation of the child, s.41 of the Children Act requiring the appointment of an officer of the service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interest. The court may appoint a solicitor to represent him. The so-called “tandem” model for the representation of children who are parties to family proceedings, namely by a guardian with social working qualifications and a specialist family solicitor meets our obligations to comply with Article 12: see Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, per Thorpe LJ at [26] who went on to conclude his judgment saying:

“32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift.”

If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.

27. Thirdly, there is provision for attendance. Under s. 95 of the Children Act the court may order the child concerned to attend as prescribed by rules of court. FPR 12.14 provides that any party must attend the proceedings but the proceedings or any part of them may take place in the absence of a child pursuant to FPR 12.14(3) if the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.

28. Fourthly, as for evidence, s. 96 of the Children Act provides that a childs evidence may be heard by the court if, in its opinion he understands that it is duty to speak the truth and he has sufficient understanding to justify his evidence being heard. S. 96 also provides for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. FPR 22.1 gives the court power to control evidence by giving directions as to the issues on which it requires evidence, the nature of that evidence and the way in which the evidence is to be placed before the court. The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at the final hearing by the oral evidence.

 

 Of course, section 96 is providing the POWER to hear from a child, in those circumstances, and not providing a RIGHT for the child to hear evidence. And the Court of Appeal here draw the distinction between hearing from a witness to PROVE a fact, and hearing from them as to their views.

 (The case of Re W, of course, the lead authority on children giving evidence, was primarily dealing with cases where the child was s96 competent to give evidence AND was a witness of fact. Here, the issue was not a factual dispute to be unpicked, but as so often in care cases, a dispute as to how the case should be properly disposed of, given the facts that were available)

 The lead judgment in Re P-S grappled with the issue of whether a child has a RIGHT to give evidence and reached this conclusion  [underlining is mine]

 

That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers.

36. Nevertheless, in my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed the guidance at [43] prefers the child being heard under

conditions of confidentiality, not in open court. It may be enough that a social worker, i.e. the CAFCASS officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.

 

 

 

The Court of Appeal then went on, and this is what makes the case particularly interesting, to a law geek like myself

 

In my judgment no-one has a right to give evidence. A trial may nonetheless be fair if the court exercises fair and reasonable powers to control the evidence as is provided for by FPR 22. Once there is undisputed evidence of a fact which may, for example, be a fact admitted on the pleadings, there is no need for further oral evidence to prove that fact. Evidence may be led to dispute a fact but the court will not tolerate a parade of witnesses all saying the same thing. An adult would not be allowed to give that evidence any more than a child should be.

 

[I think until the Court of Appeal ruled on that, MOST professionals would have suspected and said confidently that a party had a right to give evidence in care proceedings - yes, that that doesn't mean they can pontificate for hours on end, or that they can call a string of character witnesses, but that if they want to get into the box and speak directly they have the right to do so.]

I have had many cases, and am sure that other lawyers and professionals would say the same, where the parents have wanted to have their say in giving evidence to the Court, although the evidence is not being heard to resolve a factual dispute  (did X or Y event happen) but rather as part of disposal (given that X or Y happened, what should happen now?)

 I have often made it plain, in those circumstances, that I would not cross-examine the parents, who want to have their say – their view and beliefs are legitimately held, and the experience of care proceedings is bad enough for a parent without my cross-examining them (unless there is a factual dispute).

This authority suggests that a parent does not have a RIGHT to take to the stand and be heard from, in the absence of a factual dispute.

 Of course, the reality is that this evidence takes little time, gives the Court a feel for the parents presentation and is perhaps part of the cathartic process for the parents in feeling that they had their say – as opposed to leaving Court feeling like they have not been heard.  I suspect that most Courts will continue to hear from parents in those circumstances, but as they say in Game of Thrones, “Winter is Coming” and who knows how circumscribed our hearings might become in our brave new world of 26 weeks?

 The last point of the appeal was whether the welfare checklist was, in effect, weighted once a child neared their majority so that their wishes and feelings had greater force than the other elements, or was perhaps even a rebuttable presumption that they should be adhered to.

Is there a rebuttable presumption that the mature child’s wishes should prevail?

43. In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive. Judge Parry dismissed this argument for reasons with which I totally agree.

Haranguing Haringey

The case of  AB and Another v London Borough of Haringey 2013 and the valuable lessons that can be learned from it.

  The case itself can be found here:-

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/416.html

And there’s an exceptionally good piece on it here, written by Celtic Knot, [@Celticknottweet]  a fellow blogger, who was involved in the case and thus has both first hand knowledge and a very good perspective on it.

 

http://notsobigsociety.wordpress.com/2013/03/15/data-gathering-damned-if-we-do-damned-if-we-dont/

 

 

The issue was broadly this. Haringey social workers became concerned about the children of a family and sought information from other professionals about those children. They did not seek the consent of the parents to obtain that information. The parents, who were professionals working in the child protection sphere (one a social worker, one not) considered that, with their knowledge of procedures, that the procedures had not been properly followed and that their confidentiality had been breached and sought to challenge matters.

The nub of the case was this – was Haringey’s decision to conduct a section 47 investigation a fair and reasonable one, following proper processes?  There are two distinct categories of social work involvement at this early stage – one is the initial assessment, and one is a section 47 investigation. The Court were looking at what needs to be in place before one crosses from initial assessment and investigation and information gathering to a formal child protection investigation under section 47.

 The Court sum up the law on section 47 investigations very neatly

 

  1. Section 47 of the Children Act 1989, in Part 5 of the Act entitled Child Protection, provides as follows:

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

(a) are informed that a child who lives, or is found, in their area—

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare … .”

  1. Section 47 enquiries are one of the principal measures available to a local authority to enable it to exercise its child protection functions to protect children who are at risk of suffering or are suffering significant harm whether it be physical, emotional or psychological harm. Such harm and such risks are often very difficult to ascertain and root out and the purpose of section 47 is to provide a readily available means whereby a local authority can ascertain the facts and risks that a child is running and then to identify and implement necessary protective, supportive and developmental measures to safeguard and to promote that child’s welfare. The objective of a section 47 enquiry is to protect children who are suffering from or are threatened with significant harm and the threshold for its operation in any given case is the need for the local authority concerned to have reasonable cause to suspect that that child is suffering or is likely to suffer significant harm.
  1. The use of section 47 and the measures that may be taken by a local authority following its use are predominantly aimed at securing the best interests of children. Its use is intended to be child-focused and to take account of the child’s views and wishes without unduly and unfairly disrupting her family life. The use of section 47 should also take account of the personal and family rights of a child’s parents or carers so long as that does not interfere with the overriding duty of child protection and development.
  1. Section 47 enquiries are multi-agency in their scope and they will usually include such agencies as the child’s school, medical practitioner, social workers and the police. The police have an important role to play given the likelihood that in most cases where a child is suffering or is at risk of suffering significant harm, the perpetrator or perpetrators of that risk or that harm will have committed or will still be committing serious criminal offences whose victim is a child.
  1. A section 47 enquiry involves an in-depth child-centred assessment of a child’s developmental needs, of the harm she is suffering or may suffer, of the capacity of the child’s parents or carers to respond to the child’s needs and of the family and environmental factors that are playing a role in the harm she is suffering or may suffer. This intrusive assessment should take account of the views of the different agencies involved with and the external influences on the child and it must also directly involve both the parents and the child unless this will endanger the child. The necessary fact-gathering should include sessions with the child without her parents or carers present and it should ascertain that child’s wishes and aspirations wherever possible. The assessment, known as a core assessment, must be concluded so that a holistic view may be taken of the child’s needs, of the significant harm that the child is being or is at risk of being subjected to and the steps that can be implemented for the eradication of negative influences on the child and the promotion of favourable ones on her.
  1. A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed. There are now extensive statutory checks that must be made about adults who are caring for or working with children or who are coming into contact with them in an educational, health, pastoral or care context. Thus, involvement in a section 47 enquiry may often result in the ending of a career involving contact with children. This will usually be for good reason but this is not always so and there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.
  1. A section 47 enquiry can of course prove to be very damaging for a child, for her parents and for their mutual relationships. In particular, the lives of parents can be badly affected if and when adverse conclusions are made about the harm that they have inflicted on their child. These can include criminal prosecution, the loss or their child, intrusive involvement in their family and private lives, loss of employment or being barred from working with children and an adverse entry on their records held by reporting authorities such as the police and various regulatory bodies. A particular trigger for any of these adverse effects is the fact that a section 47 enquiry was undertaken in relation to their child at all since its threshold is that significant harm has occurred or that there is a risk of it occurring. Thus, a section 47 enquiry, which will often be reportable by the parents concerned, can blight their lives irrespective of the nature and extent of the significant harm or of their involvement in it or of the reasonableness of the suspicion that generated the enquiry in the first place.
  1. For all these reasons, the simple and apparently straightforward terms of section 47 mask a myriad of problems and to help deal with these, a plethora of rules, procedures and guidance have been produced. These are largely found in the statutory guidance issued by the Department for Children, Schools and Families and by statutory authorities such as the London Safeguarding Board. Statutory guidance is issued with statutory authority and it must therefore be complied with unless local circumstances indicate exceptional reasons to justify a departure from it in a specific case. This body of guidance is intended, if followed, to enable the very difficult decisions and exercises of professional judgment to be made satisfactorily on a case by case basis. These judgments are taken so that the substantial harm affecting the child may be investigated, her best interests may be protected and the rights of parents and carers are taken into account.

 

If you want it even shorter than that, it is that section 47 investigations are an important tool to protect children, but using them has consequences for the parents and the State must be careful that they are used in accordance with the guidance given, to avoid abuses.

 

The threshold for deciding whether a set of circumstances triggers section 47 is as below  (underlining mine)

 

18. The relevant service has a statutory duty to initiate a section 47 enquiry but only if it has decided that it has reasonable cause to suspect that the child is suffering significant harm or is at risk of suffering such harm. That reasonable suspicion must arise in and be tested by the initial assessment process which may only be short-circuited in exceptional circumstances. The objectives of the resulting core section 47 enquiry are essentially to determine what is likely to happen if nothing changes in the child’s present situation and what the likely consequences for the child are.

 

 

Of course, the section 47 investigation process might well either develop those concerns about the risk that the child is exposed to, or reveal that the concerns held are either baseless or that the risk is comfortably managed or has dissipated; but the crux is that in order to embark upon a section 47 investigation, the LA MUST have reasonable cause to suspect that the child is suffering significant harm.

 

That’s the reason why social workers can’t just knock on a persons door and ask to come in and snoop for some evidence of harm – they have to have reasonable cause to suspect (or what, if you want to borrow from American cop shows, you might call “Probable cause”)  that the child is at risk of harm in order to commence an investigation.

 

This is what prompted the Haringey s47 investigation

 

 

  1. An unsigned letter dated 11 March 2011 addressed to LBH’s “Social Services Child abuse Department” was received by SFR on 15 April 2011. There is no record of when it was sent by the anonymous author or first received by LBH. The letter read:

“Dear Social Workers

Worried about the family living at [full postal address given].

I am a neighbour of the family living at the above address and I have some very big worries about how they are looking after the young girl in the house. I think the little girl is about 7 years old and there (sic) girl. The mother is always screaming at the little girl shouting and screaming. I have seen the mother pulling the little girl along by her arm and slapping her. The little girl looks so unhappy she is not allowed to speak to anyone and when you see her in the street the little girl looks very sad and never raises her head to look at you. There is often shouting late at night from the house. The man in the house is much older and could be granddad or a lodger.

I am worried to talk to the family because they don’t speak but I know they have been rude to other people in the street. Please could you make sure that the little girl is alright.”

 

 As a result, Haringey social workers made what are called ‘background checks’, contacting the police, GP and school to see if there was anything known about the family.

 It was only after these checks were conducted, that Haringey contacted the parents to notify them of the concerns, and to begin their investigation/assessment.  [AB and CD are the parents in this case, LBH refers to the London Borough of Haringey, EF is the child]

 

 

  1. AB reacted strongly to this call for a number of related reasons. These were:

(1) It seemed to AB, with her knowledge of child protection procedures, that LBH had made several serious errors in the way it had dealt with her daughter’s case.

(2) LBH should have obtained her or CD’s permission before making any contact EF’s GP and school but had in fact approached those agencies without even attempting to obtain it.

(3) LBH appeared to have embarked on an initial assessment of her daughter without first evaluating her risk to satisfy itself that one was needed. In her view, a risk assessment was particularly necessary since the referral had been made by an anonymous member of the public so that it could not be tested or evaluated.

(4) Before deciding on an initial assessment, a social worker should have seen EF on her own to assess whether it was possible that she had been subjected to a significant risk of being seriously harmed.

(5) The threshold for the decision to start an initial assessment had not objectively been reached in this case.

(6) Even if it turned out that it was wholly unjustified to carry out an initial assessment, the fact that it had taken place could ruin the careers of both her and CD as professionals involved in child protection work.

(7) None of the appropriate steps had been taken that would have enabled an objective and fair decision to be taken that it was necessary to embark on an initial assessment of her and her family.

AB had grounds for legitimate complaint about each of these features of the decision-making process leading to the initiation of an initial assessment process.

 

 

At the end of the s47 process, the conclusion was that EF was not at any risk and the referral had been malicious

 

 

  1. 54. On 10 May, Ms Mawdsley noted the following about the investigations and assessments that he had carried out:

“Following the home visit to [EF] and her parents and having considered information shared from other agencies, it is my opinion that it is highly likely that the referral received was malicious. It is my assessment that [EF] is not at risk of significant harm in the care of her parents.”

 

The key issue in dispute therefore was whether Haringey were able to legitimately commence a s47 investigation on the family BASED on the referral, and thus seek the background checks without parent consent, or whether a s47 investigation could not legitimately begin until the workers had actually talked to the parents  (this not being a case where there would be a difficulty in finding them).

 

The Court broke this down into four questions

 

 

  1. These grounds require these issues to be addressed:

(1) Was a section 47 enquiry decided upon?

(2) If so, was it unlawful?

(3) Was the data-gathering exercise before and during the initial assessment process unlawful?

(4) What remedies are the claimants entitled to?

 

The Court concluded that at the time, there had not been a formal decision to move this consideration of the anonymous referral from an initial assessment to a section 47 investigation (looking specifically at the failure to have any record of such a decision, there being no approval by a manager of that decision and

(5) Particularly significantly, the family were visited and AB and CD were interviewed separately from EF. These interviews were not in structure or content part of a core assessment but were part of, indeed the principal component part of, an initial assessment.

(6) Whereas it is perfectly possible to terminate and abort an initial assessment, the guidance provides that a core assessment should be completed even if it emerges that the criteria for a section 47 assessment are not in fact present. In such a case, the outcome resulting from the completed core assessment will be that the child is not subject to significant harm and any recommendations for future interventions or that no future interventions are needed will be recorded.

(7) The guidance also makes it clear that the section 47 decision must be taken at a strategy meeting, held if necessary, if the situation is one of extreme emergency, over the telephone. Such meetings were held and both decided upon there being no further action and that decision was recorded by Mr Baker, albeit long after the fact in the core assessment document.

(8) Ms Chew appears to have taken the section 47 decision after Mr Baker had left her and, it now seems from an analysis of the evidence, only after she had sight of AB’s email to the Head of Service dated 4 May 2011. She then appears to have reacted hastily and as a direct response to seeing that email and only communicated her decision to AB and CD in her letter dated 5 May 2011 which was delivered on 7 May 2011. That cannot be regarded as a final and conclusive section 47 decision given all the shortcomings that I have described.

 

 

They went further, to say that IF a section 47 investigation had been decided upon before meeting with the parents and seeing the child, that would have been unlawful.  The only circumstance in which a s47 investigation can be triggered without seeing the parents and the child, would be where there was extreme urgency or an assessment  (based on evidence) that a home visit would put the child at risk of harm, neither of which were present.

The Court’s decision that Haringey had not been in fact conducting a section 47 investigation was critical, because it would be the fact of a s47 investigation that would allow the obtaining of information from third parties without the direct express consent of the parents

 

 

  1. The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

  1. These were serious departures from permissible practice and these actions were unlawful.

 

 

The Court then moved on to remedies

 

 

77.   Issue 4: What remedies are the claimants entitled to?

  1. The claimants are entitled to a quashing order quashing the purported section 47 enquiry decision and to declarations that there never was a section 47 enquiry decision, that the initial assessment was terminated because EF was not at risk of significant harm and because it was highly likely that the anonymous referral was malicious. In consequence, the Manager and the Practice Manager decided to close the case. They are also entitled to declarations that LBH acted unlawfully in not seeking AB and CD’s consent before approaching EF’s GP and school and seeking information from them.
  1. That leaves over for further argument what steps should be ordered to be taken to ensure that all references to AB and CD having been subject to a section 47 enquiry are removed from all data bases and that all appropriate persons who should be notified of this are notified and what the terms of that notification should be. Furthermore, it leaves over a claim for damages on which I need further argument as to both entitlement and amount.

 

 

The relevance of this decision is therefore this :-

 

    1. That unless there is urgency, or an assessment based on evidence that a home visit would endanger the child, it is unlawful to commence a section 47 investigation without visiting the child and speaking with the parents  (that process would instead be an initial assessment)
    2. Seeking background checks without parental consent would be unlawful UNLESS a legitimate s47 investigation had been formally convened and was taking place (and frankly, even then, one ought to try to get parental consent)
    3. A breach of (1) or (2) above, can result in financial compensation.

 

 

There’s big discussion over at the blog I referenced initially as to whether the parents in this case got a better outcome because they were social workers. It is certainly the case that knowing the procedures and guidance led them to know that the procedures and guidance hadn’t been followed, and of course, the consequences for them of a malicious referral had professional consequences for them as well as for their family. But the principles here apply to all families and all investigations.

“Ex parte removal by the back door”

A discussion of the Court of Appeal decision in Re L (A Child) 2013

 I will begin this discussion by being frank. I do not like this decision. I do not like it on a train, I do not like it on a plane. I do not LIKE green eggs and ham.

 I feel deeply uncomfortable with it, and hope sincerely that it is not used as precedent for any future decisions. I hope that it rests with the peculiarly unusual facts of this case only.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/179.html

 In very brief terms, the central issue was this. The Court had profound concerns over a number of months about a child and had a wealth of information about difficulties in the parenting provided to the child. The Court, faced with a shift in the Local Authority stance that the time had come to remove the child, used the powers under section 37 of the Children Act 1989 to make an Interim Care Order, which allowed the Local Authority to remove the child.

 So far, nothing terribly questionable. The facts of the case justified the making of an Interim Care Order, they probably justified removal, and the Court had the power to make an ICO under section 37 of the Children Act 1989 although no application had been made.

 My issue with the case is that what actually happened was the Local Authority deciding that if they placed the mother on notice that they intended to make an application for a Care Order / Interim Care Order, that the child would not be safe.  They obtained a hearing before the Judge, to which the other parties were not invited and did not attend and had no knowledge of.

 

The Court looked at the section 7 report prepared by the Local Authority, which made plain their escalation of concerns, their intention to issue care proceedings and their fear of what mother might do if given notice of that intention, heard from those representing the LA and made a section 37 direction and an Interim Care Order, with a view to a hearing being listed at which the parents could challenge that ICO.

 

  1. On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.
  1. For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments.

Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

  1. There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.”

 

 

And the Court of Appeal felt that this was permissible and justified

 

In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere.

Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship.

Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist.

In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

 

This is my problem, in a nutshell.  Where a Local Authority wish to initiate care proceedings and they think that the risks of doing so on notice are too great, there is a mechanism for making an application ex parte and having it heard before a Judge.

 The mechanism is to make an ex parte Emergency Protection Order application.

 And because the nature of such an order is draconian, and because the risks of making an order without the parents being there and represented are so serious and risk a breach of article 6, there are incredibly stringent requirements of the Local Authority, who have to demonstrate extraordinarily compelling evidence to do so, pace RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

It sits extremely badly with me that in private law proceedings (albeit ones that are about to become public law proceedings) a Local Authority can go in and see the Judge ex parte   [not least because they have no locus standi to make any sort of such application] and that a decision can be made which is in practice an ex parte Emergency Protection Order using section 37 of the Children Act, without any of the protective mechanisms of Re X.

I also think, for me, there is a wealth of difference between a Judge weighing up the facts of a case and reaching for section 37, and a Local Authority effectively asking the Judge to exercise the section 37 power to make an ICO without there being an application on the table.

I’ll make it plain, on the facts of this case, which the Court was extremely familiar with, there was a considerable argument that the removal was the right thing to do. There was some very peculiar stuff happening with this poor child, and the watershed moment had been reached.

And I suppose one takes into account that unlike a traditional EPO application where the Court knows nothing of the case but what the applicant tells them, the Court here had a wealth of knowledge.  I have pretty little doubt that HAD the application been framed as an ex-parte Emergency Protection Order application   [there’s sadly quite a bit of song and dance to how you get that heard by the High Court Judge who knows the case, rather than in the Family Proceedings Court] it would have been given and a judgment delivered that would have been safe from appeal. BUT it would have had to have had the Re X safeguards.

Or if the Court of Appeal had said, it is acceptable to use section 37 in this way, but the applicant should have the same duties as set out in Re X and the Court should approach the section 37 request in the same way, where the application is made ex parte.

 I really don’t like this decision, and for me, this is the second recent time that the Court of Appeal have looked at the ability of the Court to make an Interim Care Order (sanctioning removal of a child from parents without the parents having had sight in advance of the Local Authority case and a threshold document) using section 37 as the hook, and have taken a very permissive “the law doesn’t prevent this, so go ahead” stance, rather than focussing on the issues of natural justice and saying that it is a tool to be used with extreme care.

I probably would not have allowed the appeal, since the decision to remove was probably the right one, but would have made it plain that a Court in future faced with any such ex-parte consideration of using section 37, should have firmly in mind the principles of Re X.  

The Court of Appeal don’t, for me, seem to have contemplated that it was never envisaged that the Court would make a section 37 order and ICO without the parents being present or represented at a hearing, because it would TAKE PLACE IN PRIVATE LAW PROCEEDINGS to which they are parties.  It was never envisaged that a Local Authority would be having an ex parte hearing in proceedings where they had no locus (having been asked to compile a section 7 report).

“Social Services are asking me to put my child in care, and they want me to do it now”

 Some important things for you to know, if you are asked to put your child in care. And some practical tips.

 

Firstly, and I can’t stress this enough – I am not your lawyer, just A LAWYER, and what is right for you and the circumstances of your case are things I don’t know, and the best thing I can recommend is for you to either talk to your own lawyer or find a lawyer and talk to them.

If you need to find one – you came here on the net, so you have internet. Google “family law firms in X” (where X is your town or county). Look for ones who do Care work if you can. Get in touch with them and make an urgent appointment.

There might be a good reason for you, and your family, why agreeing to the children coming into care is a good thing. What I want to help you with is not agreeing just because you feel you have no choice, and before you have had chance to think and ask your own lawyer what to do. If you honestly feel that it is the right thing for you, don’t be put off by me. I am trying to help people who feel that it ISN’T the right thing for them.

That done, back to your situation. You are a parent, social workers have come to your house, told you that they are worried about your children and think they need to come into care and are asking you to agree.

Here are some important things to know before you make any decisions

1. You don’t have to say yes. It has to be your free choice.

2. You don’t have to decide right now.

3. You are entitled to tell them that you want some legal advice before you decide something as big as that.

4. If you are told “If you don’t agree we will go to Court”, this is supposed to make you agree to avoid going to Court. It doesn’t have to. The Court will listen to your side of the story, and it might be that going to Court is the right thing for you to do. At the very least, it will get you a lawyer who will listen to you, give you advice and speak on your behalf.

5. The social worker doesn’t have any magic powers to be able to take your children away. They have to have either your agreement, or a Court order. Except in very specific circumstances, they can’t get a Court order without you having a chance to be there, to have your own lawyer speak on your behalf and have the chance to have your say.  They should NEVER go away and try to get that order without you being there if they have asked you to consent to the children coming into care and you have said no. That hearing should be with you present.

6. If they DO have that Court order, you will have a chance at a later Court hearing to challenge and fight it, but I’m afraid the order does give them the power to remove (if it is an Emergency Protection Order or an Interim Care Order) and trying to prevent them won’t do much good. You can try to tell them the names of other family members who would be willing and able to look after the children (as they have to consider placing the children within the family rather than with strangers if it is safe to do so)

7. The police do have the power to take your children away without a Court order (I’ll come back to that later) so you will know that if the police aren’t there and there isn’t a court order, your children will not be going anywhere unless you agree or until you have your say in Court.

Here are suggestions for what you can do if you are asked to make that decision

Very hard to do, but keep calm. It is likely that what you do and say in the next hour or so will end up being information given to the Court. It can be information that helps you (you were calm, reasonable but firm) or that hurts you (you got aggressive, shouting, or physical, or the children were exposed to lots of drama and distress whilst all this was going on).

With that in mind, it is perfectly fine to say something like “That’s a real shock. I want to talk about this, but I don’t want the children to have to hear it. Can we sit down with the children being in another room and talk about it for a bit?”

And “I’d really like to get some legal advice about all this before I decide anything at all, does this have to be decided right now?”

If they are insisting on it being right now, it is fine for you to ask why, and also fine for you to ask them for some paper, so you can make a note of what they are saying.

It is also fine to say “I would like to call my lawyer to see what they think and I am going to do that now, just so I know where I stand”

[I don’t know whether agreeing to the children coming into care is right for you, or right for your situation, that’s a matter for you and your lawyer. What I want to do is give you the chance to make that decision and think about it and know what it means.]

The social worker will probably say something along the lines of “I’m afraid if you won’t agree now to the children going into care, then I’ll go to court and get an order for them to come into care”

And as I said earlier, you need to remember, that what they actually mean here is “I’ll go to court and ASK for an order for the children to come into care, and you will be at Court and you can ASK for them to stay at home, and the Court will make a decision”

And also that the Court don’t automatically grant those orders – they require the social worker to have evidence that the children are at risk and that going into care is the only thing that can be done, and that everything else that could be tried either has been or isn’t safe to try.

It might be that for you, going to Court is better than agreeing for the children to go into care. You would have your chance to fight this in Court, to have someone speak for you, and the chances are that if Social Services are in your home asking you to agree to the children going into care that you will eventually have to be in Court in order to get them back. So the threat of the case going to Court isn’t a good reason to agree to the children going into care, if you wouldn’t otherwise agree to do it.

Agree if you do think it is best for you or your children, or if talking it through with your lawyer you decide it is right for you right now, and that you need to sort some things out for yourself first before you have that fight.

If you feel that you are being bullied to agree or make that decision right away, you can say to the social worker “I believe that the High Court in Re CA, decided that section 20 consent has to be voluntary and not as a result of pressure, and that my human rights could be breached if I was cajoled into that agreement”

And “It isn’t that I am not cooperating, but I think a decision about whether my children should be removed is a very big one, and I don’t agree that right now. I’d want to see all of the evidence and have my own legal advice before I thought about it”

What if the police are there?

If the police are there, all of these discussions become much more serious. The police do have the power to take the children away, under Police Protection. That lasts for 72 hours, after which time the social workers have to either get a Court order, or your agreement to the children being in care, or a Court order.

So you would have a right to challenge and fight to get the children back in 72 hours, but you obviously want to avoid that happening if at all possible.

So firstly, again keep calm. Shouting, yelling, screaming, throwing things, being aggressive are all things that make the police more likely to use that power. Try not to give them any excuse.

Here are the magic words, if the police say “we are going to take your child into police protection” or something similar.

“Officer, I’m not being difficult, but I see that you have come with the social worker, which means social services are already involved. And as the High Court said in Re CA 2012, where that is the case, the social worker ought to go to Court to seek an order from the Court, so my human rights aren’t breached by the police or social services. And you will know from the Liverpool case that the police shouldn’t just take a child into police protection to save the social worker the trouble of going to court. And so you should only take the children into police protection if the risks are so great that they can’t be kept safe until the case is heard in Court. I won’t do anything silly and I won’t run away. I will go to Court and the Court will decide. If you want, you can watch me with the kids, or they can go to (my mother/aunt Beryl/whoever) until the Court case starts, then you know everything will be fine.”

That may well put the fear of god into them. It will probably make them think “God, I don’t know anything about the law on this, but this person seems to, and the High Court say we shouldn’t do this”

And you won’t have said anything that isn’t (a) true and (b) fair. No threats, no shouting. Just a reminder that the police aren’t supposed to do social workers dirty work for them, unless there is evidence that the children won’t be safe with you even for an hour whilst the social worker gets a Court hearing sorted out.

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