The Court of Appeal have given judgment in the full Permission to appeal application by these parents from a Care Order and Placement Order decision at first instance.
Re BP and SP v Hertfordshire 2014
http://www.bailii.org/ew/cases/EWCA/Civ/2014/1524.html
This case was covered by me when Ryder LJ first gave a judgment on the papers moving it forward to fuller hearing
https://suesspiciousminds.com/2014/08/02/we-are-all-unquantified-risks/
[You might recall, if I jog your memory, that this was the case involving a child where there had been no naming ceremony, and the father had assaulted the social worker – and at the hearing before Ryder LJ the thrust of the argument had been “if the child was removed because the father was a risk to social workers, was that wrong?”
If you don’t remember that, you might remember the Telegraph’s report about the case
http://www.telegraph.co.uk/news/uknews/10855218/Child-with-no-name-must-be-adopted-judge-rules.html ]
These were Ryder LJ’s strong words at that initial permission hearing (but the permission hearing could not ultimately reach a decision because the parents and their McKenzie Friends did not have the court papers from the care proceedings that would be vital in reaching a proper determination of the basis on which orders had been made.
These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?
At this hearing, the papers were available, and the application was heard by three Judges. Ryder LJ gives the lead decision, and again reminded everyone that “nothing else will do” is not a legal test or principle.
There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).
In relation to the father’s main point of appeal, the Court of Appeal encapsulate it like this :-
In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them.
Their decision and analysis in relation to this, having seen all of the papers (that were of course not available to Ryder LJ at the previous hearing ) was this
On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.
The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:
- father exhibited sustained antagonistic behaviour throughout the proceedings before DJ Mellanby who concluded that his behaviour was likely to continue;
- the consultant psychiatrist relied upon by DJ Mellanby was of the opinion that father would not change his aggressive behaviour;
- father had assaulted the social worker in the presence of P in respect of which he has been been convicted and since then he has also been convicted of an offence of threats to kill for which he was sentenced to a term of imprisonment;
- father was unlikely to be able to manage his behaviour even in the presence of his children;
- father prioritised his own needs above those of his children:
- by refusing to engage with the local authority to agree contact with his sons even to the extent of denying B a relationship with him;
- by refusing to comply with assessments or engage with the children’s guardian;
iii. caused an unnecessary change of placement for P;
- father is unlikely to change his behaviour;
- mother is unable to control father’s behaviour.
Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.
Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.
There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.
In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.
Against that factual backdrop, the Court of Appeal was satisfied that father’s bare assertion that he might be a risk to social workers but not to his child was not bourne out by the evidence, and thus that limb of the appeal was not successful.
The interesting academic argument about whether threshold is met as a result of a parent behaving aggressively to a social worker but not to a child or in the presence of a child, will have to wait for another case.
A fresh limb of appeal was raised, which was that within pre-proceedings work, an expert had been instructed, and the parents subsequently learned that this expert was on a retainer basis with the Local Authority in that they had agreed to do 20 hours of work with the Local Authority each week for 46 weeks of the year, making them really semi-employed by the Local Authority (not in an employment law sense, but leading the parents to question whether such an arrangement could still result in the expert being considered ‘independent’)
A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).
The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.
The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.
Such an arrangement, the Court of Appeal say, could be capable of giving rise to a conflict of interest, and proper transparency needs to take place (not just burying the disclosure deep in the pages of boilerplate Letter of Instruction); but there had not been a conflict of interest in this case – the Court of Appeal noted that there had been no cross-examination of the expert by the parents, who would have been entitled to do so if they challenged the report.
suesspiciousminds 
The bundles issue was a matter of case management by the court: the local authority could have provided a bundle (CPR 1998 PD52D is silent; but this is common law or Bovale gap direction stuff: why not proceed on analogy with FPR 2010 PD27A para 3.1); and when the case was set down for permission hearing, the court could have chased up the local authority.
McK friends should know this; but so too especially should Rider LJ (or one of the other two bissyllabic LJJ). When Rider J was Lord High everything else to family justice he and I were involved in drafting some new proosals for case management. As soon as he climbed a little higher he forgot all about it; and where his papers have gone within MoJu is a mystery. However this bundles point is in some of the rules and PDs already.
So too is the next matter: expert evidence. Net result in this case may be ‘right’; but it is nowhere near just. To reach a conclusion without mentioning any of a variety of legal principle; and by mentioning one as if it was law – namely a PD which is only tangentially relevant – is a poor show. Harrrumph. I’ll be back on the expert evidnce point (by ref to a few more of Rider LJ’s howlers).
And if Ryder LJ’s was an administrator’s decision or a school essay on expert evidnce, I suspect he would be told to go way and do his decision-making or essay all over again.
I think that the independence issue is too lightly discarded here. I don’t know that it would be a fatal flaw to the case, but it seemed to me a larger flaw than is acknowledged here. Fine if the assessment is never mooted as an independent one, but the LA using some broader expertise within its resources, but if it was pitched as an independent assessment, it seems that the financial arrangements make that open to question.
Reblogged this on dbfamilylaw and commented:
Perhaps the right answer on expert evidnce; but perhaps void because no attempt to address the law on expert evidnce
When I deal with these sorts of cases I am always mindful of the infamous Re.D case of 2010 and the comment and noted paragraph of erm.. by….erm .mind block…. well,
and not forgetting the recent one of last year, Re.P, when things were looking bright, not quite orange but you get my drift,
In Re. P Black LJ took a different approach in that the L.A failed to find out why was causing the fathers hostility,
“Re. P (A Child) [2013] EWCA Civ 963
The mother and father separated in 2010. The Local Authority became involved and implemented a child protection plan which centred on the standard of care received by the child, her witnessing domestic violence and the fathers aggressive attitude towards professionals.
In 2011 the mother moved to a different part of the country with P and began a relationship with another man. A further child protection plan was implemented during the currency of which P suffered non-accidental injuries caused by the mother’s new partner and was raped by him. Care proceedings were instituted and a final care order and placement order were made in October 2012. The father appealed the making of those orders.
The Court of Appeal allowed the appeal holding that the judge had failed to carry out proper balancing exercise or a proportionality analysis when granting the Local Authority care order and placement order.
Black LJ identified four key factors which had contributed to the Judge’s error:-
1. Firstly, there was a need for a proper analysis as to the factual and evidential basis of the L.A. Concerns (in this case the fathers conduct may not have been as violent or aggressive than was in fact thought). In this context it is necessary to avoid unnecessary detail in chronologies and statements and threshold documents. One needs to concentrate on the essential nature of the problems which have led to the Local Authority to intervene and there is a requirement to distinguish properly between the facts and the processing of those facts and an understanding that assessments and opinions of social workers can only be valid if the facts on which they proceed are properly identified and proved.
2. Secondly, the Judge should give proper weight to the positive features of the father’s care and it is important to hear evidence from professionals with direct knowledge of the situation rather than listening to evidence which can only amount to hearsay or documents containing layer upon layer of hearsay.
3. Thirdly, the Judge had not given a proper appreciation as to the mitigating factors in relation to the fathers apparent aggression to social workers (this had to be set against the background of what had subsequently happened to P after she left his care which was not his fault and which he had attempted to prevent).
4. Finally, the judge had failed to acknowledge the fact that adoption is a last resort, (citing the decision of the Supreme Court in Re.B). In this context the court also had to consider, if there were deficiencies in the father’s care what support would assist him in any way. By concentrating on the specifics of what had happened and the harm which was feared, one had to consider what steps could be/had been taken to guard against such this, such as therapy.
One would have thought instead of repeating the mantra in Re.B and B-S one would have hoped the COA looked at the case differently and as they should treat each case on its merits, this was a prima facie in that the discussion of Sec. 31 and hostility towards the Authorities does constitute Section 31 being crossed, the doors were wide open for the debate, I would have loved to have had!,
personally I don’t think it does constitute crossing section 31, as long as the hostility is kept at the door and away from the child once the authorities have left. I am forevermore shouting at the froggle box when the political elite are chomping away at the bit like some rabid dog, more so yesterday, the words coming out of my mouth would have further melted the ice caps, we are in torrid times of late, peoples fuses are very much shorter and so is our tolerance limit, I am thankfully blessed one quite high, [others may beg to differ] however it is part and parcel of life and, has gone on for millennia where the people and the state just do not get on and quite frankly should never be in the same room together!
Spot-on analysis but I can’t help thinking that the lofty, amused tone is inappropriate when discussing the complete destruction of a family’s life. Mr & Mrs P___ have been devastated!
So, Suesspiciousminds, no personal interjections or views on this matter?
Doesn’t it remind you of the Western Front? Both sides deeply entrenched and immobilised by their positions? Mr Patel’s visceral and uncontrolled hostility, I can completely understand – his new-born child was removed from his wife’s breast shortly after birth in hospital by social workers, supported by 20 police officers. Frankly, I’m surprised that only threats have been made so far!
I simply do not understand Hertfordshire County Council’s position at all. How is it that soi-distant professionals be so unimaginative and unempathetic as to not understand that their relationship with Mr P_______ had completely, and irretrievably, broken down and that a new approach and new team was necessary? The tragedy of this case, like so many, is not the inadequacies of the parents but those of the professionals who should have been able to do so much more.
A fair point – the Court judgments so far (which are all that I have to go on) don’t really do a good job of unpicking whether this relationship could have been salvaged at a much earlier stage and the responsibility of professionals to have made efforts to do that. That’s probably covered more in my first piece.
I had not intended to be flippant in the piece – any of the cases that I write about have awful tragic human emotions in them, and that’s taken as read. There are plenty of sources for very dry writing about the very dry technicalities, and the mood music here is somewhat lighter, but I absolutely take your point that these are real people facing real pain and that everyone should respect that. I see now that your point was aimed at Jerry rather than me, but I still take the point.
Hertfordshire paid Jeffes 82800 pounds make her a paid employee of Hertfordshire cc.
Parker J never made a placement order.
Most of the case questions avoided.
I see it doesn’t mention that this father acted in self defence after being hit by the social worker. Who got away with his unprovoked attack that was witnessed by several people.
I also thought along the same lines as Jerry, with RE D coming immediately to mind
Look listen im the mother to these children I really think u all need to read and listen to the fukin truth first then make ur comments. WE HAVE NEVER HURT OUR CHILDREN. WE DIDNT REFUSE TO NAME OUR BABY. THE SOCIAL WORKER WOUNDNT LET US. YES WE ARE HINDU AND THE SOCIAL WORKER REFUSED THE RIGHT FOR US TO HAVE A NAMING CEMONRY. AND THATS WHY HE HASBT BEEN NAMED. ALSO I HAVE NO FUKIN LEARNING DISABILTY. THE SOCIAL WORKER REFUSED ME TO BREASTFED MY SON. REFUSED TO PUT MY PARTNERS NAME ON THE BIRTH CERTIFICATE. ALSO WENT AHEAD AND REGISTERED THE BIRTH. THE IS ALOT THAT YOU ALL DONT KNOW.
No ones attacking you or Bhup pet, this is a blog to discuss the ins and outs of points of law, whether they are right or wrongly followed etc, it’s never personal.
The points of law, when an Independent Witness is made out to be a Dr Linda Jeffes and paid £82800 by Hertfordshire County Council.
This is fraud as Hertfordshire County Council mislead the Court.
The Criminal Matters are all being appealed there are plenty of witnesses to ensure that the truth comes out.
Stella Knibbs Hertfordshire Social Worker lied in criminal court, The security Guard refused to answer any questions about the time when she alleged she sat next to me. This did not happen and was proved in court still found guilty at Luton Crown Court.
This was recorded on cd as well as witnesses.
When we asked for an actual Independent expert. Nicolas O’brien Coram chambers shit his pants and fought hard to stop.
Also Breatfeesing was refused and Elaine Moore Hertfordshire Social Worker stopped and refused breastfeeding in contact. Which is a breach of my childs human rights.
Most of this Judgement is a huge fabrication of untangled lies.
The main fact is we never ever hurt our children.
The marks and bruising appear when they in Foster Care which ia normal. The same as falling down the stairs in foster care. Where was the stair Gates ask Elaine Moore this was a tragic accident.
All the real abuse covered up by Hertfordshires finest.
RE D EWCA civ 1000 para 15
‘hostility to social workers raises a problem which is all too familiar in the family courts a parent whose capacity to care for his or her children is put in question is likely to resent it social services on the other hand have a duty to inquire and in some circumstances to take action often there will be an important question whether with a measure of support the parent or parents can achieve good enough parenting if the parent has become resentful of the social worker whether for good cause or for bad it will for that reason be that much more difficult to provide support this very often leads to the parent being criticized for lack of cooperation with the social workers and in turn to the parents resentment of the social workers intrusion growing rather than diminishing it becomes a vicious circle it can sometimes then be easy for the social workers to think that a uncooperative parent is for that reason also an inadequate parent but the one does not follow from the other’
is the caselaw yas are looking for myself knowing it off by heart now given thats their whole case because i challenge the LA and allegedly prioritise the fight with the LA over my children ….. well durrr give me my children back and i wont fight for them back RETARDS !?
any way on another note what they fail to address in this case and every bloody other case going the majority of the time is …..
S31 of C89 states it is the care extended to the child and that the child is suffering or likely to suffer harm from the care or lack of it extended to the child being not what is expected so how the hell does hating the LA qualify this test when care of the child isnt in question its compliance with the LA and the state in regards to draconian measures taken that breach the ECHR 8 !?
no where in any law book or case law iv read does it say ‘the state can take kiddies wherever we dont like the parents on crystal ball BS coz we shall enjoy cash bonuses from doing so’
rant over
stella xx
Parents who have not committed a crime against children should not have their children forcibly taken by the State.We punish people who break the law and it makes no sense of the law to punish those also who do NOT break the law Agreed that in this particular case a father was convicted of hitting a social worker ;making him something of a hero to any child witnessing the event and causing no emotional harm whatever.The judge should be locked up for a very long time for crimes against humanity and offences against human rights.Virtually conspiring to stealing a child from loving and caring parents is a crime against the family and all those responsible should be punished.
Hence why family courts should not be dealing with ‘child abuse’ claims, that is not a civil matter, it is a criminal one and should be treated as so.
Leave the crime to the criminal courts and the ‘disputes’ and civil matters to the family courts and we will see a seriously sharp decline in adoption rates, being that criminal courts are more open to public scrutiny, where cases cannot be built against innocent parents and evidence to prove misleading information by local authorities is ignored.
It’s interesting that the father in this matter does not shy away from his actions towards the social worker who had hit him first, he believed the police/court would allow him the right to self defence. He was wrong.