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Dangerous Territory…. Assessment of a parent who is overseas

I have been somewhat sniffy about certain judgments this week, but once in a while I come across one that tackles a difficult issue and does so with compassion, verve and flair. This is one of those.

 

The Judge is Hayden J, and there is so much to admire in this short judgment.

 

Although some of the facts are very specific, I suspect that parts of this judgment will be of wider use to professionals and Judges picking their way through the potential minefield of assessment of a parent who lives in a place that the West might consider dangerous, and the issues that are thrown up.

 

London Borough of Tower Hamlets and D 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3901.html

 

 

The father in this case lives in Somalia and would be unable to come to England to be assessed. The Local Authority had explored various options for assessing him in Somalia and had been unable to get any of them in place (we’ll come onto that detail later). The father had identified an independent social worker who might be able to conduct the assessment, and the issue before the Court was whether to grant such an assessment.

 

By way of backdrop, Hayden J summarises the principles in assessing parents or family members in this way

 

I approach the task by identifying three principles:

 

 i) every opportunity should be made to explore the potential for a child being cared for by a parent;

ii) this obligation (for it is nothing less) is a facet of both the child’s and the parents’ rights pursuant to Article 8 ECHR;

iii) in evaluating the reality of the available options and the ambit of the assessment that needs to take place, it is the welfare of the children that remains the paramount consideration.

 

Weighing the measures required actively to promote the upbringing of a child by his or her parents will be a matter which is inevitably sensitive to the facts of the individual case. It will not always be “necessary” for there to be, for example, a comprehensive assessment of a parent. There will be cases where from the outset the obstacles to a parent’s wish to care for a child, no matter how genuine or profoundly expressed, will be so substantial as to make it obvious that other options require exploration as a priority eg: another family member.

 

 

Whether an assessment is “necessary” will therefore depend on the facts. Here the Local Authority, supported by the children’s guardian, submit that for a wide variety of reasons the father cannot and need not be assessed. The father, who is living in Somaliland, cannot obtain access to the U.K. but is represented by Counsel. Mr Millington, on his behalf, has endeavoured to address the obstacles that the father faces.

 

 

 

Hayden J touches on what a different climate we live in now than the one that existed when the Children Act was put together.

 

I should observe that, to my mind, even the prescient architects of the Children Act 1989 could not have envisaged the considerable cultural changes that were to take place in the United Kingdom in the 23 years that followed the implementation of that Act. British society is now multicultural. Assessing parents and family members may, quite frequently does, involve considering individuals based anywhere in the world. I do not believe that the obligation to explore the family option for a child is weakened in any way by geography, although it can provide real challenges to already overstretched resources. The viability of these options must, from the outset, be evaluated rigorously and reviewed regularly. The need for such assessments must be addressed at the very beginning of proceedings. Late identification of potential family carers abroad may bring two fundamental principles of the Children Act into conflict, namely the desirability, if possible, of a child being brought up in its extended family (where parents are for some reason unable to care for the child themselves) and the need to avoid delay in planning for a child’s future. Neither principle should be regarded as having greater weight. The recent reforms to the family justice system have sought to emphasise why it was that the avoidance of delay was given statutory force by the Children Act and the real and lasting harm delay causes to children, particularly in public law care proceedings. There will, in my judgement, be occasions when the obstacles to assessment of family members abroad create such delays that to pursue the option will be inconsistent with the child’s own timescales. These are taxing and exacting decisions but they require to be confronted with integrity and without sentimentality.

 

 

Hayden J goes on to warn of the risks of cultural relativism

 

The court must also be alive to the dangers of slipping into cultural relativism. The fact that a family member may live in a country where there are high levels of crime for example, or terrorism, corruption, or civil unrest will undoubtedly be relevant to the overall evaluation of the factors set out in s.1(3) of the Children Act 1989, but to my mind they will rarely, if ever, be determinative in and of themselves. It is the care offered by the individual that weighs most heavily and not the challenges faced by the State in which he lives. In any event these will often be facets of the child’s own cultural inheritance.

 

 

[The Judge manages to compress into ten lines something that took me nearly two pages in my article for Jordans http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-relatives-culture-and-cultural-relativism ]

 

 

The judgment then sets out the sad history of the case for these two children, which is desperate even by the nature of such cases, the mother having pleaded guilty to causing the death of their sibling by neglect – this neglect was also something that these children suffered from though not with such drastic consequences. {the details are terrible, including the paramedic saying that the child looked like someone from Auschwitz}

 

It then sets out the efforts that have been made to assess the father, who lives in Somalia.

 

The Parties attempts to address the International Obstacles

 

 

Earlier in these proceedings the local authority, guided no doubt by counsel, Ms. Cabeza, proposed to identify a Somali speaking social worker and dispatch her to Somaliland to undertake an appropriate comprehensive assessment, no doubt tailored to the particular cultural features of the father’s own domestic situation. However it quickly emerged that Somaliland would be too dangerous for the social worker to travel to. That information came from two sources: firstly, the Foreign Office and Commonwealth Office (F.C.O) secondly from C.F.A.B. (Children and Families Across Borders) formerly, International Social Services. The Foreign and Commonwealth Office advised against all travel to Somaliland except two cities, Hargeisa and Berbera, to which the F.C.O. advise only “essential” travel. The F.C.O. offers guidance to British nationals, that is part of its function. It recommends that any British nationals in areas of Somalia to which it advises ‘against all travel’ should also leave. Similarly, any British nationals in the two towns that I have referred to, who are not there for “essential purposes”, are also advised to leave.

 

 

There is a ‘high threat’ in Somalia from terrorism including kidnapping. Terrorist groups have made recent threats against westerners and those working for western organisations. The FCO believes that this is a “constant threat”, and according to its intelligence there are terrorist plans “in existence” to attack westerners in Somaliland. It considers that terrorist attacks could be entirely indiscriminate. They could take place in crowded areas or at high profile events. They could involve government officials and places frequented by foreigners. As is known internationally, there is also a significant threat of piracy in the Indian Ocean and in the Gulf of Aden.

 

 

The FCO advises that all areas in Somalia are suffering from significant food shortages and as a consequence there has been displacement of thousands of Somali people. The consensus understanding of the guidance is that where it refers to Somalia it also incorporates Somaliland, Somaliland itself not being internationally recognised. As a result of the food shortages there is a profound problem with food security which has led to dangerous levels of criminal activity not infrequently by armed militia. There have been murders, armed robbery and a number of incidents of kidnapping.

 

 

That already complex picture is further complicated by regular outbreaks of what is referred to “as inter-clan related violence”. There is particular tension on the Somali and Puntland border in the Sool and Sanaag regions which, on the map I have been shown, can be seen to be not far from where the father lives. That is the essence of the guidance given by the F.C.O. CFAB largely follow that guidance and advise that they have no international social services provision available at all in Somaliland.

 

 

Having considered that body of compelling evidence, the local authority inevitably concluded (rightly to my mind) that they could not send a social worker as they had originally envisaged. However they have been able to speak to the father on the telephone. All of this has informed their approach to the father’s desire to care for the children. On 2nd June Mr. Brian Sharpe filed a statement. Mr. Sharpe is the Local Authority’s court work case manager. He has oversight of all the Local Authority’s public law applications and his role is to work with social workers and their managers to improve standards and support good practice in their work with children who are the subject of care and supervision proceedings. In his statement Mr. Sharpe sets out, in a succinct and accessible way, the structure of the Local Authority’s reasoning informing its ultimate decision not to send a social worker to assess the father of the children.

 

 

Firstly, Mr. Sharpe emphasises (as in my view he is right to do and as I have already outlined) that the Local Authority had initially been prepared to send a U.K. social worker from a Somali background to undertake the assessment. He further stresses that their commitment to the assessment was evidenced by the fact that they had identified three Somali social workers working in the UK before in fact selecting a particular social worker. In addition they had explored the possibility of instructing an external, independent social worker. Mr. Sharpe set out how, on receiving the advice of the FCO and CFAB, the authority came to the conclusion that it would be simply unsafe for a social worker to visit Somaliland. The decision was taken by the Local Authority’s interim head of Children’s Services. Mr. Sharpe says that is an indication of the extent to which this Local Authority has subjected this matter to scrutiny, conscious as it is of it’s obligation to the children to explore, wherever possible, the option of children being brought up by their father. The conclusion was that it would be simply “reckless” to send a social worker to the area. A visiting professional perceived to be acting for the UK government was likely, on the available evidence, to be at increased risk. In the Local Authority’s view that was an unacceptable risk and, had that worker come to harm, Mr Sharpe considered “the Local Authority would be justly censured for acting against FCO advice”. I agree.

 

 

 

 

What else could be done? Those acting for father had a rather clever solution. Noting that the Foreign office guidance was that it was not safe for any British national or Western person to go to Somalia, they found an ISW with dual-nationality. [Let’s leave aside for one moment how we feel about sending two damaged children to live in a country where it is not safe for any Western person to visit…]

 

 

In relation to the FCO website entry which has been downloaded, copied and filed within these proceedings, Mr. Millington accepts that the advice is, “Against all travel to Somalia including Somaliland …”. However, he submits, the court should consider that the FCO advice is specifically tailored to British nationals and/or westerners generally. Mr. Millington said this is clear from the content of the website:

 

 

“Any British nationals in the area of Somalia to which the FCO advised against all travel should leave.”

 

Mr. Millington says the advice is directed to westerners and those working for western organisations. The constant threat of terrorist attacks identified in Mogadishu and the evidence before me of the existence of extant violence against westerners in Somaliland, is, it is said, really confined to westerners. To address this Mr. Millington identifies an independent social worker who is not, “a westerner” but has dual nationality, both British and Nigerian. This person, a Ms. Coker, has indicated that notwithstanding the parlous situation in Somaliland she would be content to travel there, undertake the assessment and do so on her Nigerian passport. However, there is no evidence at all upon which to substantiate the assertion that she would be less likely to be at risk as apparently a non-westerner whose purpose in Somaliland could be kept covert.

 

 

Furthermore, it is said that Ms Cole would be undertaking the assessment at the behest of the English court and therefore there should be no reason for anyone outside of the father’s immediate circle to be aware of this. I have been told that she has been referred to the CFAB and FCO guidance and is nonetheless still willing to travel. It is further submitted that if the court were to determine that there should be no further assessment of the father in Somaliland then given the likely problems with obtaining a visa, such a decision would effectively have the consequence of ruling him out of the children’s lives permanently as a long-term carer. Accordingly, it is submitted that so crucial is the assessment that it plainly falls within even the narrowest concept of “necessary” within the provisions to which I have alluded.

 

 

I have to say that if Ms Cole was willing to go to Somalia to do this assessment for the miserly Legal Aid Agency rate of £30 per hour, then she is a remarkable human being, and deserves a “big-up” . The Local Authority shared my doubts as to whether it would be safe for Ms Cole to undertake this assessment.

 

The local authority opposes any assessment of the father by an independent social worker. Mr. Sharpe did not accept the assertion that Ms. Coker was necessarily at lower risk than any British national merely by virtue of her dual nationality. Moreover he outlines some real practical issues: Ms. Coker would not be able to communicate directly to the father in his own language. He would require an interpreter and Mr. Sharpe says (in my judgment with some force) that the mere presence of the interpreter in these circumstances would draw attention to their situation and would heighten the risk to her. Logically, Mr Sharpe observes that it would therefore expose at least two people to risk: the social worker and the translator. In addition, it is said, the use of an interpreter will undermine the effectiveness of the assessment in the country. To my mind that is not a strong point. It will of course very much depend on the quality of the interpreter but the Family Court is used to taking evidence through interpreters, and to evaluating the nuances of language through translation.

 

 

More significantly, to my mind, it is also contended that there is an ‘irrevocability’ about any assessment undertaken in the circumstances contended for on behalf of the father. In the U.K., where assessments of prospective carers are undertaken with interpreters, the social work team aims to communicate with and to forge a working relationship with the family. The unfolding nature of this process, to paraphrase Mr. Sharpe, often provides an ongoing and continuing assessment throughout the course of the litigation itself. That simply would not be possible in these circumstances.

 

 

Moreover, it is submitted, that the pre-requisite to any recognised assessment model, however tailored to the particular circumstances (culturally and otherwise) of the case, is that there should be some background checks eg: in relation to what is on offer educationally, police checks and an assessment of what is available in healthcare and support. Mr. Sharpe considers these enquiries to be unrealistic and also suggests that they will further attract attention to the independent social worker and her translator and thus heighten risk.

 

 

 

The Court’s decision was that it could not sanction Ms Cole being sent out to undertake this assessment, whilst holding open the possibility that another solution might be found (perhaps involving the father coming to the UK to be assessed)

 

I have come to the clear conclusion that it would be no more appropriate for me to authorise Ms. Cole travelling to Somaliland to assess the father than it would be for me to sanction or encourage any other British national. However, to my mind, that is not the end of the matter, other options could be considered. More importantly in my view, is the obligation upon the parties and the court at this very early stage to look at the real viability of any proposals that the father seeks to advance through counsel.

 

 

The Court did however, set out the broader issues in relation to the damage these children had sustained (in particular that they HAD been receiving good care from their mother before that so drastically and dreadfully stopped, and the confusion that must have caused for them) and the significant needs that they have. The Court would have to, at final hearing, take account of both that and the circumstances in Somalia as part of the welfare checklist

 

I have taken some time to set out the circumstances in which the children were discovered in October 2013 because to my mind it is important not to divorce the facts relating to the requested assessment from the wider canvas of these children’s lives. Although they are coping well, they have been subjected to a profound trauma, not only the direct experience to themselves but the experience of losing their sibling. The ordeal they have endured is not merely one of truly profound physical neglect, it is also one of acute emotional deprivation.

 

 

Having likely received good care from their mother in the past it must have been very difficult for the children to comprehend why such care was no longer available from her. I do not require a psychologist or a therapist to tell me that it is likely that this period in their lives will take a long time to assimilate and for them to understand, if indeed they ever do. They are already being provided indirectly with therapeutic support via the foster carers who I have been told are providing an outstanding level of care, largely intuitively, as they are not specialist foster carers. The children are very lucky to have them, they have shown real insight.

 

 

In due course and when their futures have been settled by a decision of this court there is, I am told, to be a referral to Child and Adolescent Mental Health Services (C.A.M.H.S.). Conventionally, that will involve an initial assessment and most likely some program of specialist therapeutic intervention. This court also regularly hears that trauma in the early lives of young children often surfaces in adolescence where reactivation of mental health support and services is often required. This may be relevant when considering the legal framework for the longer term.

 

 

All this reveals a situation where the children face considerable challenges for the future. In evaluating the issue of assessment I also have to consider what is ultimately contemplated by the father’s application. Even if it were possible to surmount all the other obstacles identified, the proposal would be to take these children to a country and culture entirely alien to them and one in which the kind of therapeutic support they will need will be unavailable. The theoretical is ultimately eclipsed by the practical, the children’s needs and timescales cannot be accommodated by the father’s case. Logically, it is at this stage that the wider backdrop of the civil unrest in Somaliland becomes relevant, as part of the overall balancing of the factors in s.1(3) of the Children Act 1989.

 

 

I would not wish to discourage the father from applying for a visa if he chooses to do so. I am surprised that he has not already applied; Mr. Millington tells me that this is as a consequence of a misunderstanding on the father’s part and that he thought his solicitors would have applied for the visa. I have already expressed some scepticism about that explanation. Nonetheless, if he were to be able to obtain a visa to attend the hearing and to be available for assessment, I have no doubt that the local authority would and indeed should speak with him and assess in whatever framework available, such material as they can, in order that the father is provided with the maximum advantage to advance his case on behalf of his children.

 

Have we just given up on the notion of the Supreme Court being supreme?

 

After yesterday’s CM v Blackburn in which the Court of Appeal sidle up to the notion that the Supreme Court weren’t formulating new law in Re B, we now have the High Court in the form of Mostyn J just outright quibbling with their decision in Cheshire West.

 

In Rochdale v KW 2014 http://www.bailii.org/ew/cases/EWCOP/2014/45.html

 

Mostyn J was sitting in the Court of Protection and was faced with an application as to whether KW’s liberty was being deprived and if so ought the Court to sanction it.

  1. Katherine is aged 52. She is severely mentally incapacitated, to use the new language of the MCA; she is of “unsound mind” to use the old language of Article 5. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996[1], when aged only 34. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support.
  2. In April 2013 Katherine was admitted to hospital. Her mental health had declined. In May 2013 she was transferred to a psychiatric ward, and later to another hospital. On 28 June 2013 she was discharged and transferred to a care home where she stayed until 14 April 2014, when she returned home. For appreciable periods between 28 June 2013 and 14 April 2014 Katherine’s confinement to the care home was not authorised under the terms of the MCA. On 26 June 2014 Katherine, acting by her litigation friend, made a claim for damages under Articles 5 and 8 of the Convention. On any view she had suffered an unlawful deprivation of liberty during those periods when her confinement was not authorised under the MCA. Her claim has been settled with modest compensation and a written apology. I approve the terms of the settlement.
  3. Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back. The weekly cost of the arrangement is £1,468.04. Of this £932.52 is paid by Rochdale and £535.52 by the local NHS Clinical Commissioning Group (“CCG”).

 

We have here therefore

(a) a person who lacks capacity

(b) a person who is being cared for by the State  (albeit in the setting of a foster ‘home’ rather than in residential care)

(c) a person who tries to leave that accommodation and when she tries is prevented from doing so, and if she gets out is brought back

 

On the basis of the Supreme Court’s ruling in Cheshire West, this appears to be a deprivation of liberty, but Mostyn J felt otherwise.

I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

 

Mostyn J goes on to conduct a philosophical exercise on the nature of liberty  (I can highly recommend Alex Ruck’s blog on the judgment – he says everything that I wanted to say, and far more elegantly http://www.mentalcapacitylawandpolicy.org.uk/js-mill-strikes-back-mostyn-j-takes-on-the-supreme-court/)

 

It is plain that Mostyn J is aware that he is bound by Cheshire West, although making it plain that he doesn’t himself agree with the Supreme Court, but he attempts to distinguish the case (in ways that frankly, one might consider the Supreme Court had already ruled on), concluding that this particular issue needs to be looked at again by the Supreme Court and granting leave to appeal in order to facilitate that.

  1. The opinions of the majority are binding on me and I must loyally follow them even if I personally agree with the view of Parker J and the Court of Appeal in MIG and MEG; with the Court of Appeal in Cheshire West; and with the minority in the Supreme Court[2]. There is a similarity between this case and that of MIG inasmuch as both involve so called constraints on an incapacitated person living at home. In determining the factual question I cannot take into account the benign motives of Rochdale in providing the care arrangement or of Katherine’s contentment with it. Nor can I take into account the designed normality of the arrangement in Katherine’s own home.
  2. As I have shown, a key element of the objective test of confinement is whether the person is “free to leave”. This is part of the acid test. “Free to leave” does not just mean wandering out of the front door. It means “leaving in the sense of removing [herself] permanently in order to live where and with whom [she] chooses” (see JE v DE and Surrey County Council [2006] EWHC 3459 (Fam)[2007] 2 FLR 1150 per Munby J at para 115, implicitly approved in the Supreme Court at para 40). This is the required sense of the second part of the acid test.
  3. I do not find the test of the Strasbourg court in HL v United Kingdom 40 EHRR 761, at para 91, where it refers to the “concrete situation” of the protected person, as being of much assistance. The adjective “concrete” means that that I should look for an actual substance or thing rather than for an abstract quality. That is to state the obvious. Plainly, I will be looking only at Katherine’s actual personal circumstances and not at any abstractions.
  4. Katherine’s ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not “free to leave”. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.
  5. By contrast MIG was a young woman with full motor functions, notwithstanding her problems with her sight and hearing. She had the physical capacity to leave in the sense described. She had sufficient mental capacity to make the decision to leave, in the sense described. If she tried she would be stopped. Therefore, it can be seen that in her case both parts of the acid test was satisfied.
  6. In my judgment there is a very great difference between the underlying facts of MIG’s case and of this case notwithstanding that in both cases the protected person lives at home.
  7. It is my primary factual finding that in Katherine’s case the second part of the acid test is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.
  8. I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family[3], Article 5 is simply not engaged.

 

 

For me, Alex Ruck puts it perfectly in his analysis

 

Mostyn J’s conception of freedom to leave is fundamentally predicated upon a concept that of liberty that is dependent upon a person’s ability to exercise that right, either themselves or by another. A person who is severely physically disabled – and therefore house-bound – could not, on Mostyn J’s analysis, be considered to be deprived of their liberty. It is, however, extremely difficult to square that analysis with the conclusion of Lady Hale (with whom Lord Kerr agreed) that liberty must mean the same for all, regardless of whether they are mentally or physically disabled (see the discussion at paragraphs 33-36).

 

We are once again getting back to a conflation of two questions – whether someone is deprived of their liberty, with whether it is justified. Katherine’s circumstances almost certainly make any deprivation justifiable, but to say that her liberty is not deprived as a result of her physical and mental difficulties is at right angles to the decision of the Supreme Court in Cheshire West.

 

We shall see what they say, if the case finally gets to them, but given how long we waited for Cheshire West to be resolved, the prospect of further doubt in this area is not appealing.

{I myself like to ‘stress-test’ deprivation of liberty cases by looking back to L and Bournewood – I’m not sure L would be helped by this sort of formulation}

Nothing else will do – In which Nails are placed in coffins, and heads of pins are danced upon

 

The third Court of Appeal decision in a month to backtrack from “nothing else will do” and this one does so very powerfully. (previous two Re MH and Re M, both blogged about last month)

 

To the point of saying that it is not a test.

 

In case you are pushed for time to read this, I’m afraid that you still have to write/read all the analysis of the various options, and the Court still have to consider those options and analyse them, but the Court of Appeal say that “nothing else will do” isn’t a test, but a process of deductive reasoning.

 

In case you are new to the whole adoption debate, then welcome, and in a nutshell there appears in the last year to have been a tension between the Government (pushing a pro adoption agenda, including telling social workers to stop thinking of adoption as a last resort) and the senior judiciary, who have been mindful of the principle that adoption is a last resort.

 

 

Even the President of the Family Division has acknowledged this tension

 

 

http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=18284:top-judge-recognises-tension-over-court-rulings-and-guidance-on-adoption&catid=54:childrens-services-articles

 

 

the Department for Education said: “The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort.”

 

Asked about the issue by Local Government Lawyer at a press conference yesterday (29 April), Sir James responded: “Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means.

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so.”

 

But the President added: “I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in Re B in the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year…..

 

“So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law.”

 

The Family President added: “In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.”

 

 

 

You might want to put a mental Post-it Note on the President (the lead author of Re B-S) saying THIS

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view

 

Because the Court of Appeal (Ryder LJ lead judgment) are currently saying THIS

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts.

 

 

Have fun reconciling those two things.

 

The case is CM v Blackburn with Darwin Council 2014 (lead judgment Ryder LJ)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1479.html

 

 

The point of the appeal was an issue that immediately came into most people’s minds following Re B-S – dual planning.

 

It is not (or was not) unusual, to see a care plan that said “we will search for an adoptive placement for the child for 6 months, and if that is not successful, then a foster placement will be found”

 

As a matter of law, based on the principle of “nothing else will do”, how could a Court say that fostering would not do in order to make the Placement Order, when the plan envisages fostering being a possible outcome? Either it is permissible to say “adoption is better than fostering for this child, but both would do”   or on a strict interpretation of “nothing else will do” the Court should reject the Placement Order as there is clearly something else that will do (fostering, explicitly provided for in the dual care plan as the fallback)

 

The Local Authority in such cases aren’t saying that fostering won’t meet the needs of the child, it is saying that adoption is a BETTER way of meeting those needs. (which for me is fine and common sense – they have to make the case, but a Court should have that discretion)

 

Is that compatible with “nothing else will do” ?

 

Well, given cases in October (and cough, the adoption figures and political uproar), it is not surprising that the Court of Appeal say “yes, dual planning is compatible with the law”

 

 

 

Here’s what they have to say about “nothing else will do”   (and it is not only a major shift, but it probably makes large parts of the Myth-Busting document now accurate, or at least more accurate than it was before this judgment was published – so it was a fortune-telling document as well as a Myth-Busting one)

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court’s approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]

 

“we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt.”

 

 

 

Yes, you have read that right – the Court of Appeal are now calling nothing else will do an unnecessary gloss on the statutory test. A gloss that a year ago they were embracing and thrusting on us all. We are rewriting history here – in the words of Kevin Costner “We’re through the looking glass here, people”.

 

 

Someone else might hear make a cruel remark about irony and unfortunate glosses to statute, but that would be beneath me.

 

 

The Court of Appeal goes on

 

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same.

 

 

(That will delight the Government and Mr Narey – as this is their line. But go on, please)

 

 

A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.

 

 

[You may be seeing here that there is no mention of the least interventionist order, last resort, draconian nature of the order – that’s all bound up here in proportionality. But it is fairly pivotal and important that it was the specific issue of whether adoption was a proportionate answer and the circumstances in which it might be that led to the ECHR decision in Y v UK which was at the heart of Re B and Re B-S. It is a strange omission, and one which is also conspicuous by its absence in the Myth-Busting document]

 

That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.

 

 

“nothing else will do” is not a test – that noise you may hear as you read this is your eyes rolling. It is just a description of the process of deductive reasoning. Therefore, if the Judge has carried out the balancing exercise and answers the question “Am I satisfied that nothing else but adoption will do?” with a “No”, can he or she make the Placement Order? If it is not a test, but just a description of a process, then possibly.

 

I mean, this is just flat out strange – the Supreme Court made themselves rather plain, I thought. But now we are told that this is not in fact a test, and we should just read the word as ‘requires’

 

I’ll deviate for a moment

 

Supreme Court, Re B June 2013. http://www.familylawweek.co.uk/site.aspx?i=ed114409

 

We are all familiar with Lady Hale’s key paragraphs, but I’ll set them out, because they seem to be vanishing before our eyes. Note that on the issue of “nothing else will do” she says that all of the Supreme Court Judges agree on that. And she is right. Although she gave a minority judgment in the case overall (i.e whether the Judge had got the individual case right or wrong), on this aspect, these paragraphs reflect the decision of the Supreme Court.

 

  1. Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face-to-face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that “nothing else will do”.

 

 

  1. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.

 

  1. But that is not the end of the story. We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.

 

 

 

Let’s now look at the words of the President in Re B-S on this issue

 

  1. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child “requires” this. “Require” here has the Strasbourg meaning of necessary, “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”: Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test.

 

  1. Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ). As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.

 

  1. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child's] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

 

 

 

And

 

  1. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.

 

 

 

All of these “striking” words, we are now told, were not intended to amount to any change in the legal test or a gloss on the statute. Anybody interpreting the word ‘require’ in the wording of the statute as now incorporating those principles is just wrong, or that a Judge is expected to answer a question about whether “nothing else will do but adoption” is wrong.

.

 

52 (1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— .

(a)the parent or guardian cannot be found or is incapable of giving consent, or .

(b)the welfare of the child requires the consent to be dispensed with.

 

Re B-S is thus, presumably, case management guidance rather than law. One wonders, if that’s the case, why it wasn’t all set out in a Practice Direction rather than a judgment, given that the primary author of Re B-S had the power to do that. [I don’t believe for a second that Re B-S wasn’t intended as an authority that Judges who failed to properly engage with proportionality and necessity and the Re B principles would be at risk of appeal]

 

 

I will give a caveat to all of this – I’m sure that there were very good Judges up and down the country who were grappling with these issues in their judgments before Re B, and were properly considering the pros and cons of adoption and were not doing as criticised in Re G by a linear process of “if I’ve ruled out mum, dad and grandparents, what is left is adoption, so adoption IS the last resort”. For those very good Judges, Re B and Re B-S didn’t really change the way they were doing those judgments and making their decisions. But it was very plain from the volume of successful appeals that there were Judges who weren’t.

 

(And I don’t think that those were bad judges or flawed judges – it was rather that it had become general practice to use that linear model and it was only once McFarlane LJ highlighted the inherent flaws in it in Re G that some shifted.   From the published judgments that I have read on Bailii in the last year, a surprising number of placement order judgments still fail to do that and simply replace analysis by quoting large chunks of the caselaw and saying “I have considered this” thus failing to see the point that the Court of Appeal appear to have been making in their condemnation of stock phrases and judicial window-dressing)

 

Were Re B and Re B-S new law, a fresh interpretation of the word ‘requires’ in the statute, or a gloss? Or were they as is being suggested now, a reinforcement and reminder of the existing law containing nothing fresh other than case-management guidance? We could dance on the head of a pin forever on that one.

 

If it was nothing fresh, it is surprising that so many successful appeals were happening last autumn and winter …

 

 

 

Back to the Court of Appeal in this particular case.

 

 

The words of Lord Nicholls in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [20012] 1 WLR 258 cited with approval in the Supreme Court in Re B remain apposite:

 

“[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.”

This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. In M-H (A Child) [2014] EWCA Civ 1396 Macur LJ at [8] said:

 

“…I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215)….”

In Re M (A Child) (Long Term Foster Care) [2014] EWCA Civ 1406 Black LJ said:

 

“What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at [77] of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

 

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be the last resort, because the interests of the child would self- evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. ” (my emphasis)

 

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests.”

With respect, I agree.

 

It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it.

 

My answers to the questions posed by Mr Rowley are as follows:

 

  1. a) The judge’s methodology was right. She conducted a fact finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.
  2. b) The statutory tests are not re-drawn. ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.
  3. c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.
  4. d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.
  5. e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

 

 

 

I think the CoA go further here than in the last two cases – in those, there was still a concept that “nothing else will do” being a test, albeit a more nuanced test in which the words meant “nothing else that will properly meet the needs of the child”

 

Here, they say explicitly

 

The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available

 

That’s not saying that the Court rejected the other options, or ruled them out, or concluded that they were not capable of meeting the child’s needs. That is outright saying that even with a reasonable and available option, adoption can still be the choice of the Court.

 

Although in saying

 

Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

 

And

 

It was not a decision that one of two options would do.

 

 

Are they in fact saying that there WASN’T a judicial acceptance that long-term fostering was capable of meeting the child’s needs and that the Court was just approving the plan of adoption by rejecting all of the other options and that long-term fostering was not a plan, but a contingency in the care plan that the Court wasn’t required to consider?

 

That’s one way of reading the Court of Appeal’s answers to those questions which still IS compatible with the nuanced / glossed “nothing else will do”   (there is no other option that is capable of meeting this child’s needs in a satisfactory way). I wouldn’t have much quarrel if the case had been decided in that narrow way – it seems to me that you could resolve it by deciding that adoption was the plan, making a Placement Order and advising the LA that a revocation application should be lodged if the plan is formally to be changed.

 

Let us be honest, in a care plan of “search for adoption for 6 months, if unsuccessful long-term foster care”, which of those two things is the ‘last resort’?   It isn’t adoption, that’s the first preference. Long-term fostering there is the last resort. When the Court makes a Placement Order in those circumstances, it really isn’t saying that adoption is the last resort; it is saying that adoption is a better way of meeting the child’s needs than the other available alternative. [Which arguably just falls under s1 of the Children Act and is a good thing, but in that case, the talk of ‘last resort’ is a sham]

 

 

 

Why, one might almost think, if one was very cynical, that the fact that Re B looked like it was heading for the ECHR led the Court of Appeal to take pre-emptive action to bolster adoption before any ECHR decision “look, we’re being proportionate!”   and now that we know Re B isn’t going to the ECHR and the practical import is being seen, there’s a backtrack.

 

I mean, I myself am not that sort of cynical person, so that of course isn’t what’s happened.

 

What has happened is that we naughty, dastardly lawyers have deliberately confused the Supreme Court and Court of Appeal saying that for the wording of the statute, “requires” means literally nothing else will do, and taken that to be a test to be followed, whereas all they meant was the quality of evidence needed for a Judge to be satisfied that the child’s welfare ‘requires’ that parental consent be dispensed with is higher.

 

And all of those successful appeals based on that point were… I’m afraid that my imagination is breaking down there and I can’t find a plausible explanation why those appeals were allowed if the position really is and always was what the Court of Appeal now say.

 

Why weren’t they rejecting all those appeals and saying “no, people have got this wrong, nothing else will do doesn’t mean that at all?”

 

If we can be honest again for a moment, imagine that a Judge in a Placement Order case in September 2013, or even September 2014 had said “I have been referred to the cases of Re B and Re B-S, but I don’t need to follow those and I am sticking to the law exactly as it was in 2012”   would the Court of Appeal have backed that

Who you gonna call? Myth-busters

 

 
There’s been quite a lot of publicity about Martin Narey’s Myth-Busting document on adoption, following the recent adoption statistics taking a hit – something that any one who had been reading the case law in the last 18 months had seen coming a country mile away.

Apparently that’s all just a misunderstanding by dopey Local Authority social workers and lawyers, and it is all our fault.   The Court of Appeal overturning case after case last summer had nothing to do with it.
[Tim Loughton, the former Children’s Minister instead says that the problems are due to Judges sulking about legal aid cuts and slowing things down deliberately. At least, according to the Telegraph he said that. http://www.telegraph.co.uk/news/politics/11224155/Judges-resentment-toward-Government-adding-to-adoption-slump-ex-minister-warns.html ]

 

http://www.adcs.org.uk/download/resources/adoption/ALB%20-%20Impact%20of%20Court%20Judgments%20on%20Adoption%20-%20November%202014.pdf

The national Adoption Leadership Board, Family Justice Board, and the Department for Education have heard regularly that these changes are a response to a number of high profile court judgments on care and adoption order cases, notably Re B and Re B-S. Some of this feedback suggests a degree of misinterpretation of these judgments. This appears to have resulted in inaccurate assumptions being made about the judgments which, in reality, do not alter the legal basis for the making of care and placement orders.

 

The document discusses the two recent cases from October, where the Court of Appeal distanced themselves from a literal interpretation of “nothing else will do” – explaining in Ben Goldacre’s phrase “I think you’ll find its a little more complicated than that”

If the Myth-Busting document were confining itself to commentary that the deluge of appeals last summer were something of a blip and we have settled down from a strictly literal interpretation of Baroness Hale’s “nothing else will do” phrase to something rather more nuanced, then I’d be fine with it.  Or even “rumours of the death of adoption have been greatly exagerrated”

Though frankly, no matter how senior the senior QC, I’d prefer to hear the Court of Appeal say “just ignore BS, it changes nothing” than to take it from a document with no legal status or weight.

 

I don’t care for the implication that Re B and Re B-S weren’t a shift in emphasis and culture – that’s to completely ignore just about everything that Hale and Neuberger said about the nature of adoption in Re B, to ignore the ECHR in Y v UK when they said this :-

 

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

or that the Court of Appeal meant nothing of substance whatsoever when they said this

 

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

If you think that has had no alteration on the legal basis for the making of Placement Orders, then I’m afraid we’ll have to disagree.  Does it change the tests in the Act? No, absolutely not. But as the Supreme Court made plain in Re B, proportionality is now a key ingredient in assessing such decisions.  And the interpretation of the word ‘requires’ in the Adoption and Children Act 2002  is now inextricably bound up with proportionality and article 8.  And the move away from linear judgments (whereby adoption ended up looking like the best option simply because all the others had been ruled out before the Court thought about adoption at all) from Re G is unquestionably an alteration to the legal basis for the making of Placement Orders.

If instead you mean – the combination of all that law should not mean that children who ought to have been adopted in 2012 shouldn’t be adopted now – the law is about making professionals and Judges work much harder on clarity of thought and reasoning, I wouldn’t entirely disagree  (I think that’s Baker J’s take, and I rate Baker J very highly).  I think there’s a very important debate to be had about whether Hale and the Court of Appeal wanted adoption to be harder to get for children, or harder to get for PROFESSIONALS.

But whether the “bar” has been raised or not, the legal basis has certainly changed – a judgment that would have passed muster in 2012 would not today.

 

And I completely agree with the document on Myth 4

MYTH 4 – because it is a “last resort” planning for adoption must wait
23. Local authorities should plan at the earliest possible stage for the possibility of adoption where it seems possible that other options – such as reunification with family, or care by family or friends – might not prove a realistic course of action

That does not mean pre-empting any decision. Nor does it remove the need to provide expert, high quality, evidence-based assessments of all realistic options to the court – which is essential in every case. But planning ahead is necessary to avoid delay and allows for a more timely process in achieving the right outcome for the child.
Absolutely right. I fully agree.  One out of five Myths successfully Busted. The others, rather less so.

 

 

I had a long long diatribe, but I’m going to confine myself just to Myth Five.

Let’s just take Myth number 5 in detail.

MYTH 5 – the 26 week rule applies to placement orders
24. Under the law as it came into force on 22 April 2014, any application for a care order or a supervision order must be completed within 26 weeks (unless the court is satisfied that delay is necessary, in which case a court may grant an extension). Placement order applications are not subject to the 26 week time limit. However, if the case is one in which the care plan is for adoption, if it is possible to complete the placement order application within the 26 week time limit, then that is likely to be in the best interests of the child, as we know that delay damages children.
If one takes each individual word, it seems true and accurate. But it doesn’t actually represent reality. The suggestion here is that Placement Order applications are free of the 26 week shackles, though it is good to get it done in that time if possible. The implication is that you can do Placement Orders in a timescale that is the child’s timescale, free of 26 week confinement.

That’s just not actually true in a meaningful way.
Yes, under the law as it came into force on 22nd April 2014 the 26 week timetable applies to care order applications, not placement order applications.

But the Act and the law are not the same things. They aren’t identical.

You can’t seek a Care Order with a plan of adoption unless you have got approval from the Agency Decision-Maker. And if you’ve got approval from the Agency Decision-Maker, you are in a position to lodge your placement order.

So if the Local Authority HAVE to hit a 26 week timetable (really 17 weeks for them, because they have to provide their evidence BEFORE the end of the case to let others respond to it) for their Care Order, then in any case where there’s a PLAN for adoption, then the same timetable applies.

 

Don’t take my word for it – let’s look at what the Court of Appeal said in a judgment that is utterly missing from the Myth-Busting document

Surrey County Council v S 2014

There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

•In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

[This case sticks out in my mind because it was Ryder LJ giving the lead judgment and I wholly agreed with it. That gave it a veneer of uniqueness that makes it easy to recall]

And of course, we are seeing right now with Re D that having a stand-alone Placement Order application (which is the practical import of Myth number 5 if we believe what Narey’s document is telling us) leads to the parents being unrepresented for the most draconian order that can be made. Article 6 anyone?

Myth 5 is not correct in any meaningful way – Care and Placement Orders are now inextricably bound up together and so, therefore are their timetables.

When the document says that it is a myth that 26 weeks apply to Placement Orders, that’s just not correct in any meaningful way in the real world. If you want to seek a Placement Order, you’re going to be doing it on a 26 week timetable, or persuading the Court to grant a s32(5) extension of that timetable in accordance with Re S.

 

Bustin’ makes me feel good.

 

 

I’ll quickly say that when the Myth-Busting document says of Re B-S  The judgment does not make it easier to obtain permission to oppose an application for an adoption order. The test remains the welfare of the child throughout his or her life.  

 

That simply holds no water when you look at the cases – pre B-S no successful leave to oppose, after B-S they are rare but happening.  An adoption order being discharged so that the argument could be re-heard, for example (Re W) On the ground, we’ve gone from leave applications being very unusual to every other adoption application having one.  And reports now of successful leave to oppose cases leading very close to a successful opposition (the High Court saying that it was only due to the exceptional circumstances and facts of the individual case that led to the father’s preference of a Special Guardianship Order not being the final outcome Re N (a child) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate )

 

The major plank of LA opposition to leave to oppose applications pre B-S – the impact on the carers of the application, which usually defeated such applications without more, is now rarely deployed, because Re B-S altered the principle dramatically in highlighting that the child’s welfare is not a short term thing, or even during childhood but is to be extended to consider his or her entire adult life.

 

So far as Busting is concerned, this is less Peter Venkman and more this dude  (a figment of the imagination)

 

There is no Narey, there is only Zuul

There is no Narey, there is only Zuul

Habeas corpus

If you see the words “habeas corpus”, you know that one of three things is happening :-

(a) you are reading a very old law report or doing a constitutional law exam

(b) you are reading a Perry Mason novel

(c) this is a misconcieved application drawn up by someone who has read some law but doesn’t actually practice it.

Justice for Families Limited and Secretary of State for Justice 2014 is not a Perry Mason novel, nor is it a very old piece of caselaw.

 

Although it is therefore the latter of the three options, I can see the mischief that it was aimed at tackling.  [In effect, a writ of habeas corpus, if granted, is a legal order meaning that whoever is holding person X must release or produce them]

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1477.html

It involves John Hemming MP, though this time in the form of a Director of a Company, Justice for Families, and the Court of Appeal.

 

Mr Hemming and no doubt the company also, have been concerned for a long time about the people who are imprisoned for breach of family law orders or contempt of court. In this case, they had learned of a woman who had been sent to prison for 28 days, and found that the judgment had not been published on Bailii, which was of course a breach of the guidance that all committal applications should be published.

 

Mr Hemming, in his capacity as an MP had learned that this was not a rare blemish, but a regular occurance, and had issued this writ as a method of focussing attention upon it.

“It is known from statistics provided by the Ministry of Justice in response to a written parliamentary question asked by myself that there are of the order of 5 people a month imprisoned for contempt for whom there is no published judgment in accordance with the practice direction jointly issued by the President of the Family Division and the Lord Chief Justice on 3rd May 2013 [this is a reference to Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316]. Hence these people should be properly described as secret prisoners. This is not supposed to happen. It should not have happened on 11th October 2013. The applicant is hoping to obtain an authority from the court of appeal which would assist in preventing this from continuing to happen in the future by making it clear that such imprisonments are unlawful and that an application for a writ of Habeas Corpus must be granted whosoever applies for such a writ and that release from imprisonment would then be expected to follow.”

 

I think, like the Court of Appeal, that the writ was misconcieved, but it is surely wrong that people should be locked up and the judgment explaining why not published. Obviously, one expects some sort of time lag (the tape has to be sent to transcribers, the transcript done, the judge then approves the transcript and it gets put up) but as we have a practice direction saying that all such judgments must be published, it is wrong that so often they are not.  I have some sympathy with Mr Hemming, and whether the application was misconcieved or not (it was), it was an approach that (a) got the case before the President (b) got the President to reinforce that such judgments must be published and (c) will probably get some publicity.

 

He also highlighted that the Official Solicitors role in reviewing committal cases and searching for injustice seems to have fallen by the wayside, and I think he is right to say that too.  [the duty got discharged in November 2012, but what safeguards remain? It seems to be an important function that has ended and not been replaced]

  1. The latest figures from the Ministry of Justice of receptions into prison for contempt of court, show that in the twelve months from April 2013 to March 2014, a total of 116 contemnors arrived in prison (monthly totals 15, 11, 8, 13, 14, 7, 12, 7, 6, 8, 7, 8). These figures are broken down into County Court (aggregate total 36), Crown Court (5), Magistrates (4), High Court (5) and “Not recorded” (66). Mr Hemming’s point, which appears to be borne out by an analysis he has conducted for us of the committal cases which appear on BAILII, is that for a very large number of these committals there is no judgment to be found on BAILII. This, if true, and every indication is that unhappily it is true, is a very concerning state of affairs.
  2. Analysis of the problem, and location of responsibility, is not of course assisted by the surprising fact that the available statistics record the type of committing court in less than 50% of the cases: in 66 out of 116 cases the committing court is not recorded.
  3. Mr Hemming, as we have seen, draws attention to the fact that the Official Solicitor no longer has any responsibilities in relation to contemnors. He suggests that some additional protection is needed for what he calls the secret prisoner, who is at present, he says, insufficiently protected.
  4. The duties of the Official Solicitor in relation to contemnors had their informal origins even before 1842, when they were put on a formal, albeit non-statutory, basis following the appointment of J J Johnson as Solicitor to the Suitors Fund (as the Official Solicitor was then called). They were put on a statutory basis by the Court of Chancery Act 1860. From 1963 they were to be found spelt out in a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

    “review all cases of persons committed to prisons for contempt of Court, … take such action as he may deem necessary thereon and … report thereon quarterly on the 31st day of January, the 30th day of April, the 31st day of July and the 31st day of October in every year.”

    That Direction remained in force until revoked by the Lord Chancellor on 5 November 2012. Accordingly, as I understand it, the Official Solicitor no longer has a role to play in relation to committal orders which result from contempt of court.

 

I have said, therefore that I can see that this was a very real problem that John Hemming was attempting to highlight and get the Court to deal with, and that I think it achieved its aim, but it is a drizzy Monday morning, and I think some of my readers might also like to read the interesting exchange when the application was being made.

 

In particular, enjoy Collins J saying something breathtakingly cool and rude and true all at the same time (underlined for your pleasure)

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of the proceedings, which begins with the following exchange:

“MR JUSTICE COLLINS: Can I see if I’ve understand this correctly? You’ve had no contact with the wife, the woman concerned?

MR HEMMING: That’s correct.

THE JUDGE: You don’t even know her name?

MR HEMMING: That’s correct.

MR JUSTICE COLLINS: You don’t even know if she is still in custody?

MR HEMMING: I’m going by press reports that she was given 28 days, but she might not still –

MR JUSTICE COLLINS: Yes she was, Of course, in any contempt proceedings, the contempt can be purged.

MR HEMMING: Of course.

THE JUDGE: And in this case it could be purged by … indicating where the children were.

MR HEMMING: Of course.”

A little later there is this exchange:

“MR JUSTICE COLLINS: … She refused to disclose their whereabouts or told untruths about where they were, and that is what led to the judge deciding as she did. Now there is no question but there is jurisdiction to impose a penalty, including imprisonment, for contempt of that nature because it is a contempt which is an interference with the administration of justice. And, of course, the whole background to this was the protection of children who otherwise would be at risk. Habeas corpus in these circumstances is an entirely misconceived remedy. There is a right of appeal. She was represented, she had legal aid, and she automatically will, even despite the government of which your party is a member and the removal of legal aid in many circumstances, still legal aid exists for an appeal against a committal order because liberty is at stake. So it is difficult to see what really you are doing here.”

Mr Hemming then explained the basis of his application. Collins J responded:

“MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.

MR HEMMING: Yes.

MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is –

MR HEMMING: Without the ability to contact her. That’s right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don’t know, do we.

MR JUSTICE COLLINS: No, we don’t

MR HEMMING: And that’s the difficulty of the situation of people in prison in secret –

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that’s what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless –”

 

 

The Court of Appeal do not disagree with Collins J on the merits of the writ of habeas corpus

 

  1. There are, in my judgment, two very simple reasons why this appeal is quite hopeless. Each provides a complete answer to the appeal, just as each provided a complete answer to the application before Collins J.
  2. In the first place, and as Collins J correctly explained, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal: see ex p Hinds [1961] 1 WLR 325, Linnett v Coles [1987] QB 555 and West v HM Prison Bure [2013] EWCA Civ 604. As Lord Goddard CJ said in Re William Oswald Featherstone (1953) 37 Cr App R 146, 147:

    The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired.”

  3. Secondly, and as I have already pointed out, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end: Barnardo v Ford [1892] AC 326, and (an authority supplied by Mr Hemming) In re J M Carroll (An Infant) [1931] 1 KB 317, 327. As Lord Watson put it in Barnardo (page 333):

    “The remedy of habeas corpus is … intended to facilitate the release of persons actually detained in unlawful custody … it is the fact of detention, and nothing else, which gives the Court its jurisdiction.”

  4. Mr Hemming’s response to the first point is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction. In support of this surprising contention he makes two submissions: first, that the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge; secondly, that the court was not “competent” because the hearing was not listed.
  5. As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint that the court lacked jurisdiction. Quite plainly, in my judgment, Theis J had jurisdiction on 11 October 2013 in the sense in which Lord Goddard CJ was using the word.
  6. Mr Hemming supports his alternative complaint that the court was not “competent” by reference to Article 6 of the Convention. The argument, in my judgment, is quite hopeless, whether or not bolstered by reliance upon Article 6. The fact is that Theis J was, as the expression was used by Lord Goddard CJ, sitting on 11 October 2013 as a court of competent jurisdiction. She was sitting in public. The mother was present and represented. The submission that an otherwise competent court was not competent because the hearing was not listed is, with all respect to Mr Hemming, devoid of all merit. I should add that I would have come to precisely the same conclusion even if, contrary to the facts, the hearing on 11 October 2013 had been held in private when it should have been in public: see McPherson v McPherson [1936] AC 177, where the fact that a divorce case which should have been heard in open court was heard in private rendered the resulting decrees nisi and absolute voidable only and not void.

I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.

 

The Court of Appeal judgment tackles a number of important points.

 

The first is the ability of a third party (ie someone who is not being held captive or prisoner themselves) to seek a writ of habeas corpus

Evidently, there is some provision for a third party to do this, otherwise miscreants could prevent the captive from getting legal remedy by simply holding them so closely that they could not apply. But how close does the relationship between imprisoned party and third party have to be, and what is required?

 

  1. In the nature of things, the court must be willing, where circumstances require, to hear an application for habeas corpus brought not by the prisoner but by some third party. For if the court refused to hear such a third party application, a prisoner unable to instruct someone to act for him would be denied a remedy and left to languish in what might be unlawful confinement. As is said in The Law of Habeas Corpus, 237, “If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts.”
  2. Thus it is clear that it is possible for a third party to make an application for habeas corpus even though acting neither as the agent of the prisoner, nor on his instructions, nor, indeed, even with his knowledge: see, for example, The Case of the Hottentot Venus (1810) 13 East 195, In re Price (1860) 2 F&F 263,[1] and Re Antoni Klimowicz (1954) unreported,[2] to each of which Mr Hemming helpfully referred us. But as the old case of Ex p Child (1854) 15 CB 238 shows, the right of a stranger to apply for habeas corpus is necessarily kept within bounds. As Jervis CJ said:

    “A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is.”

    And it is to be noted that the unsuccessful applicant was there ordered to pay the costs of the respondent who had been brought “fruitlessly and unnecessarily” to court.

  3. The principle in Ex p Child is now to be found stated in RSC Order 54, rule 1, as set out in Schedule 1 to the CPR:

    “(2) An application for [a writ of habeas corpus ad subjiciendum] …, subject to paragraph (3) must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

    (3) Where the person restrained is unable for any reason to make the witness statement or affidavit required by paragraph (2) the witness statement or affidavit may be made by some other person on his behalf and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.”

    Mr Hemming’s witness statement failed to comply with the latter requirement.

  4. In what circumstances, then, is a third party application appropriate? Given the vital importance of the remedy and the infinite variety of possible situations – as the facts of each of the four cases I have just referred to so strikingly illustrate – it would be unwise to be too prescriptive. The court must be flexible. That said, I would expect most cases where a third party application is appropriate to be either (as in Price and Klimowicz) cases where the prisoner is incommunicado or (as in The Hottentot Venus) cases where, to quote the language of The Law of Habeas Corpus, 238, “the impediment preventing the prisoner from acting [is] ignorance or disability rather than close physical custody.”
  5. In the present case neither principle applies. The mother was not held incommunicado. There was no impediment to her acting: she had counsel. Collins J was fully justified in expressing himself as he did. Mr Hemming’s complaint that the mother was being held, “incommunicado”, as a “secret prisoner” whose name was not known, was true only in the sense that neither the appellant nor Mr Hemming had made any effective attempt to discover her name

 

To be fair to Mr Hemming, he encountered a problem that many others will have encountered – an inflexibility with bureacrats to provide information without the Code or Reference number, and an inability to know the Code or Reference number because the judgment giving it had not been published.

  1. As Collins J correctly observed, Mr Hemming could have obtained a copy of the committal order on application to the Clerk of the Rules. FPR 29.12(2) provides that:

    “A copy of an order made in open court will be issued to any person who requests it.”

    Mr Hemming’s account of his attempts to obtain a copy of the committal order is vague and lacking in detail. He says that those acting for the appellant “spent some time wandering around the Royal Courts of Justice visiting the Family Division registry and talking to inter alia Jimmy in the Urgent applications court and the clerk to Justice Theis.” He insinuates, without asserting in so many words, that he was unable to obtain the committal order because he knew neither the case number nor the names of the parties to the case.

  2. As to that I propose to say only this. Plainly the court cannot be expected to embark upon an extensive and time-consuming trawl of its files to identify an order where the applicant is unable to identify what it is he is seeking. But here, Mr Hemming knew both the date of the committal order and the name of the judge who had made it. An applicant seeking a copy of the order, to which, I emphasise, he is entitled under FPR 29.12(2), should not be sent away empty-handed merely because he does not know the number of the case or the names of the parties. The court can, and should, supply a copy of a committal order, even if the applicant cannot provide those details, where the applicant is able to provide sufficient details of the case to enable the order to be located by the court without undue difficulty, for example, as here, the date of the order and the name of the judge.
  3. I add, for the avoidance of doubt, that when I refer to the court in this context I mean the court office. Applications under FPR 29.12(2) should be directed to the appropriate court office and not to the judge or judge’s clerk.

 

The other tangled issue the Court tackle is that of right of audience. Mr Hemming is not a lawyer and does not have rights of audience to present the case to Court. There was quite a clever device to get around this – Mr Hemming was effectively being a litigant in person through the vehicle of being a director of a company that has been set up in part for the purpose of tackling injustice in family cases (as can be seen through its name)

  1. CPR 39.6 provides that:

    “A company or other corporation may be represented at trial by an employee if –

    (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and

    (b) the court gives permission.”

    Paragraph 5.2 of CPR PD 39A provides that:

    “Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information:

    (1) The full name of the company or corporation as stated in its certificate of registration.

    (2) The registered number of the company or corporation.

    (3) The position or office in the company or corporation held by the representative.

    (4) The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. _19_: written authority from managing director; or _19_: Board resolution dated _19_.”

  2. The letters dated 4 November 2013 and 18 February 2014, signed, it is to be noted, by Mr Hemming, are inadequate. Neither complies with paragraph 5.2(4). Each is, in reality, no more than an assertion by the signatory that he is acting with the agreement of the board, an entirely self-serving statement unsupported by any independent evidence that he does indeed have that authority. CPR PD 30A, para 5.2 is there to be complied with. There is no excuse in the present case, where the court had specifically directed attention to it. As a matter of indulgence we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.
  3. We have not overlooked the principle, explained in The Law of Habeas Corpus, Farbey and Sharpe, ed 3, 2011, 238-239, that applications for habeas corpus are usually required to be made by counsel (now, a qualified advocate with higher court rights). Our agreement to hear Mr Hemming in this case is not to be taken as in any way weakening that long-established practice.

 

We shall wait and see whether the President’s words here make any difference to the publication of committal judgments – I would be surprised if Mr Hemming does not doggedly pursue (and rightly so) whether this problem has been resolved or whether despite the Practice Direction and the President’s words, committals continue to take place without transparent judgments being published.

 

 

Why is there something instead of nothing?

 

An age-old philosophical question, and one that every generation finds for itself – I myself remember playground arguments when I was about seven – “If God made everything, then who made God? And who made the person who made God?”    [But then I also remember being taken to the Deputy Head's Office for a fist-fight about whether the Beatles were better than Elvis]

 

I shall pass that question over to Brian Cox, who can answer it more ably than I can and also with a boyish charm that I would lack. (I think my favourite scientific answer is from Alan Guth “The universe is simply one of those things that happen from time to time”

 

But for our legal purposes, the ‘something instead of nothing’ debate is focussing on adoption, and the soundbite formulation that it appears that the Court of Appeal may be deeply regretting that a Court can’t make a Placement Order unless satisfied that “nothing else will do”

 

Understandably, if you tell a group of lawyers that the test is “nothing else will do”, half of them will find something and argue that if there is something then there can’t also be nothing.  Something else and nothing else are mutually exclusive, surely.

 

The Court of Appeal are in a process of refinement (or retreat, if you want to be mean)

 

Last week, we had Re M H   http://suesspiciousminds.com/2014/10/29/nothing-else-will-do-court-of-appeal-clarification/

 

This one is Re M (A child : Long-Term Foster Care) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1406.html

 

 

We don’t need to go into the whys and wherefores of why the child couldn’t be with mum, but save to say that it was quite plain that (a) she had problems that she couldn’t fix on her own (b) The therapy that she would need to fix the problems would take at least two years and (c) it wasn’t clear whether she would be fixed at the end.

 

The LA were saying – the timescales for change and prognosis for change mean that the child can’t wait for the mother to make those changes, and thus nothing else than adoption will do.

 

The mother’s case seems to have been that the Court should embark on a course of therapy, see how the first 6 months had gone and THEN make the decision.

 

The Court instead arrived at a “something” which involved the child being in foster care, subject to a Care Order until such time as mother was ruled as being capable of meeting the child’s needs.

 

[That sentence probably has a mixed response. If you are English or Welsh AND a lawyer or social worker, you’ll think it is nuts. If you are a parent, you’ll think it sounds fair. If you are a Scottish lawyer or social worker, you might think it sounds reasonable, because that’s an approach that is foreign to England and Wales but something that occasionally happens in Scotland.]

 

 

This was a case in which the Recorder had given three judgments, at various stages (the final judgment, an addendum giving clarification and then a judgment on the LA’s application for permission to appeal).

 

As the Court of Appeal illustrate, the reasoning is not perhaps ideal when you lay the three judgments alongside each other. My first draft used the word ‘inconsistent’ but the Court of Appeal say that to call it inconsistent is inappropriate, so I changed my words.

 

 

21. The Recorder’s three judgments do not sit easily together and nor does his thinking emerge clearly from them. There are, on the face of it, inconsistencies in what he says. I am not entirely sure whether this is because he was inconsistent in his thinking or because, in so far as his true reasoning emerged, it only did so gradually over the course of the three judgments.

 

22. I can illustrate what I mean by contrasting the end of the permission judgment with the earlier judgments. Concluding the permission judgment, the Recorder expressed himself in a way which suggested that he saw foster care as catering for the next two years or so, until the possibility of L returning to live with M had been fully explored. In the earlier judgments, in contrast, there was, at times, a sense that he contemplated that L would remain in foster care for the rest of her childhood, probably reflecting a different strand of his thinking which was about the importance of continuing the relationship between L and her parents through contact. The end of the permission judgment reads:

 

“This is a case where it will become apparent in 2 years or perhaps less whether M will be able to care for her daughter, when it is established if she will respond to therapy/treatment. If therapy and treatment is successful, M will be able to apply to discharge the care order. If, as foreseen by Dr Penny, there is a possibility, if not a strong possibility, that therapy fails (sic)…. LA can then make a fresh application for a placement order.”

 

23. The first judgment, in contrast, included passages such as those which I have set out below, which I think show that the Recorder was considering long-term foster care with contact as an option in its own right which would potentially endure throughout L’s childhood, albeit that there are some allusions suggesting that he may also have had in mind the possibility of a return to M’s care following therapy (see for example, §64 and the end of §74). The first two passages show the importance that the Recorder attached to continuing contact and the final one appears to be contemplating indefinite long-term foster care in order to maintain that contact:

 

“I find that the particular needs of L for the present are for her to be cared for in a ‘secure, warm and loving family that is able to meet all her needs’ and, crucially, for continuing the existing and loving relationships with her birth parents by way of direct contact.” (§72, my emphasis)

“I am also concerned that L will interpret being cut off from M as being a ‘punishment’ for having behaved wrongly…. “(§73)

“I do not think that this analysis [the guardian's analysis of the shortcomings of long term foster care] places sufficient weight on the importance of maintaining direct contact with her parents. It is an evaluation which does not explain why long term foster care ‘will not do’, to paraphrase, slightly, the words of Baroness Hale in a number of cases. I accept that foster placements may not be as stable or secure as adoption orders, but some succeed, just as some adoptions fail. There is no reason for the local authority to be unnecessarily intrusive in a long term fostering placement. She should be able to enjoy a relatively normal childhood, save that she would be seeing her birth parents during contact, rather than living with one or other of them.” (§78)

 

24. In the second judgment, which the Recorder expressly did not intend to affect his conclusions in his first judgment (§81), there are passages which seem to merge the idea of long-term foster care as a freestanding option and foster care as a way of preserving the possibility of a return to M. This can be seen, for example, in §88 where the Recorder commented that the social worker had not considered what L’s wishes would have been if she had been offered the option of “long term foster care with direct contact continuing and her mother receiving treatment and the possibility of return to her mother’s care if the treatment was successful”. It can also be seen in §93 where the judge comments on the Statement of Facts as follows:

 

“Again, there is no analysis of the option of long term foster care, with its benefits of continuing the strong bond between M and L and the possibility of return to her care if she successfully undergoes the therapy and other interventions.”

 

 

25. The passages that I have quoted so far leave the reader unclear as to the design that the Recorder had for long-term foster care, whether it was to be a vehicle for preserving contact or the means of providing an opportunity for a return to M if her therapy succeeded or both, but it would probably be inappropriate to describe them as inconsistent. However, I agree with LA that the Recorder’s rejection of temporary foster care as inappropriate for L at §76 is difficult to reconcile with the order that he made which, on one view, provided for just that, certainly if events were going to develop as the Recorder contemplated at the end of the permission judgment.

 

 

The option of long-term foster placement being the right option for the child was possible (and it might be possible to have made a case for the plan that the Recorder ended up with), but as the Court of Appeal say, that’s going to require a very clear and reasoned judgment

 

 

27. In the course of argument, Mr MacDonald submitted persuasively that the difficulties in the course taken by the Recorder were demonstrated in practical terms by the problem for LA in deciding what type of foster care should be chosen for L if his order were to be upheld. He had created, it was submitted, an undesirable half-way house between true long-term foster and short-term foster care which was the worst of all worlds for L. There is force in that submission. The Recorder’s plan for L had built into it uncertainty and insecurity. It also incorporated delay for a period potentially extending to 2 years. Delay, on the evidence before the Recorder (which was in familiar terms), was likely to harm L’s chances of a successful adoption placement if, ultimately, that was the proper outcome for her. Indeed, he himself accepted that a decision about whether adoption was appropriate needed to be made as soon as possible because a successful adoptive placement was more likely now than later (§72).

 

28. To justify a decision such as this would require the clearest of reasoning, particularly in the face of the very guarded prognosis for M’s therapy. I am afraid that this is absent from the Recorder’s judgments. I cannot reliably tell whether he proceeded as he did in order to leave open the possibility of L going home to one of her parents if therapy were to prove successful or because he considered that her relationship with them was such as to require preservation through contact, notwithstanding the disadvantages for L of the long-term foster care which would be the inevitable corollary of that. Furthermore, I am not confident that he gave weight to the guarded prognosis for successful therapy, or took into account the advantages for a child of her age of adoption and the disadvantages of long-term foster care, or bore in mind the advice that he had accepted at §72 (see below) as to the need to deal with the adoption question sooner rather than later. He seems to have been inclined to minimise the disadvantages of foster care, on the basis that long-term foster care would be better than short-term foster care and that LA would not be “unnecessarily intrusive in a long-term fostering placement” and L could have “a relatively normal childhood” in that context (§78). In this regard, he was, in my view, overly optimistic, not least because, with the best will in the world, LA would not be able to avoid involvement in L’s life because of their statutory duties to protect her as a looked after child.

 

 

 

But there clearly was “something” here, and “something” that the Recorder had not been satisfied should be ruled out. So, in the presence of “something” there’s an absence of the “nothing else” for the nothing else will do test, surely?

 

 

Well, no. The Court of Appeal explain that the shorthand test incorporates within it the more important concept that one is looking at [emphasis in italics is the Court of Appeal, underlining mine]

 

 

30. The “recent authorities referred to above” are Re B (a child) [2013] UKSC 33 and Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965. What is said in these authorities about the need to consider all the options and to sanction adoption only if nothing else will do must be interpreted with a careful eye to the realities of a child’s life. Delay is one of factors that always has to be taken into account in determining any question with regard to a child’s welfare, see section 1(3) Adoption and Children Act 2002 (ACA 2002) and section 1(2) Children Act 1989 (CA 1989). But whether an individual child’s welfare requires adoption depends on many other factors besides delay. A vital starting point for what those factors might be in a given case is the list in section 1(4) ACA 2002 (and its equivalent for Children Act proceedings in section 1(3) CA 1989) but these are not of course exhaustive lists. It is to be noted that the child’s age features in both of them.

 

31. The fact that speedy action will improve the prospects of a successful adoption for a particular child of a particular age must take its place in the overall appraisal of the case. Sometimes when considered with all the other factors, it will dictate that the court approves a plan for adoption of the child, even when full weight is given to the important reminders in recent cases, starting of course with Re B, that steps are only to be taken down the path towards adoption if it is necessary.

 

32. What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

 

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests.” (my emphasis)

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.

 

 

 

The Court of Appeal had been asked to make a Placement Order, but decided that the case needed to be resubmitted for re-hearing.

 

We are continuing to refine / retreat from “nothing else will do” and our soundbite test is really ending up to be quite a nuanced and long test, rather more like

 

The Court must look at each of the options for the child, consider which are remote and which are possible, and of the possible options consider whether they are contrary to the interests of the child to pursue them. If there is an option that remains that is a less interventionist order than adoption, that should be preferred.

 

That isn’t snappy, it isn’t catchy, it isn’t memorable  – but if we learned anything from the “imminent risk of really serious harm” debacle  (maybe we didn’t) it is perhaps that Courts should stick to nuance and long formulations and the statute and leave  catchy slogans to Don Draper

 

[It is therefore not Adoption > long-term fostering for the child therefore adoption, but long-term fostering being an option for the child that although possible is not in their interests]

Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.”

I continued (para 19):

“May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me - I'm not going to put the solution up online to tip off the LAA as to the loophole though]

 

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