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the interaction between Children Act and Mental Health Act

This reported case is a County Court one (which means that it is not legally binding precedent) but it raises some unusual issues.

 

The “Too Long; Didn’t read” version – don’t treat a s20 child as no longer s20 just because they get detained under Mental Health Act; and if you enjoy judicial dressing downs, there’s plenty in here worth reading.

 

Re T (Children) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B116.html

 

The application itself was by a child, St, now 16, for contact with her siblings. There were five children  (plus St herself, plus another sister older than St). I note that the Judge identifies birth dates for all of the children.  I won’t in this piece, because I think that there are a limited number of families in the Preston area with seven children and the specific dates of birth is probably all that is needed for them to be inadvertently identified by people in that area reading the judgment.  (The “jigsaw identification” issue)

St had had many difficulties in her life and at the time of the application was detained under section 3 of the Mental Health Act for treatment in a hospital. Her parents had had difficulties in caring for her and from around June 2012 had really delegated her care to the Local Authority.

 

For all practical purposes, the Local Authority had been caring for St and meeting her needs and looking after her from June 2012 until she was detained under s3 of the Mental Health Act.

 

The case was not care proceedings, but rather St’s application under section 8 of the Children Act 1989 for contact with her siblings (or as I must now describe it through gritted teeth “for a Child Arrangement Order to spend time with her siblings”  (or in my own rebranding of the rebranding  “Shiny Happy People order”)  )

The Judge had been concerned about the impact on these five children of contact with St, given her predicament and health. He directed the Local Authority to file a section 37 report advising about these matters.

On 7th January 2014 it emerged that St’s status had been changed by the Local Authority and that she was no longer deemed by them to be a child looked after within the meaning of the Children Act, with to s.20 status, but was deemed by them to be a child in need under s.17 of the Children Act. That was extremely concerning because the change of status was reported already to have had a direct impact upon St’s circumstances for the worse. It therefore seemed to me to be appropriate to make a s.37 direction in relation to St and to make her brothers and sisters parties to the proceedings. I recorded, the Local Authority being represented, what the Local Authority had to say about the change of status at that hearing and the order I made includes this recording:-

“The Local Authority contends that under internal policy, St is not ‘looked after’ by them and has not been since she was sectioned under s.3 of the Mental Health Act 1983.”

 

 

[I will confess very quickly that I don't know, off the top of my head whether a looked after child ceases to be looked after once they become detained under the Mental Health Act. There are two possibilities - a common sense literal one that says that it isn't the LA looking after her any more, it is Health, so she is not. And a technical one that suggests to me that there were a raft of statutory instruments that said that children in prisons were looked after so maybe there's one kicking around that I can't yet find that says the same thing about mental health]

 

But more to the point, the Judge’s issue was that this decision had actually detrimentally affected St.

Once again, I made recordings about St’s circumstances, setting out what was being relayed to me by the Local Authority through their counsel; this is recorded on the face of that order:-

“Lancashire County Council informed the court that they deemed the applicant, having ceased to be accommodated under s.20 of the Children Act 1989 when she became detained under the Mental Health Act in September 2013”.

And also;-

“Lancashire County Council further suggests that from the point of such detention, primary parental responsibility which was not being exercised by the respondents was to be exercised by the hospital”.

 

That doesn’t sit right with me – the hospital were looking after St and meeting her physical needs and mental health needs, but they weren’t exercising parental responsibility for her. Suppose for the sake of argument, she had needed an operation that would not have been authorised without parental consent and does not come within the treatment powers of s3? This suggests that the hospital could consent in loco parentis, and that just does not feel right to me.

I was sufficiently concerned that this decision making and approach deprived St of anybody to exercise parental responsibility for her was likely to cause her significant harm given her particular vulnerabilities and circumstances. I therefore made interim care orders in respect of her in accordance with the section pending the preparation of a further s.37 report the need for which was conceded by the Local Authority,.

 

[As readers of the blog may have picked up, I'm not a huge fan of ICOs made under s37 of the Children Act by a Judge of their own motion, but that seems to me to have been the right call here.  I dread to think of how the LA resolved the placement provisions under s22C with a placement in a mental health hospital. For what it's worth, my attempt would be s22C (6) (d)   - I'm not going to set all of that out, because there are limits to even my law geekiness]

 

The LA decided not to issue care proceedings at the conclusion of that Interim Care Order.

 

The Judge was disappointed

 I should explain why I consider three separate aspects of the Local Authority’s decision making in respect of this child are in error and represent a failure to promote her welfare.

I have three purposes in delivering the judgment. Firstly, I very much hope that after receipt of the judgment the Local Authority will review again their approach to this case. It seems to me that it is always a professional strength and not a weakness to be able to change decisions previously taken if it is right to do so.

Secondly, this seems to me to be an important opportunity to publish a judgment which highlights what has happened to a child who ought to have benefitted from two statutory schemes of protection, both under the Mental Health Act as a person suffering from a mental disorder and under the Children Act as a child who a has suffered or is likely to suffer significant harm. St, in any event, is a child whose welfare overwhelmingly deserves scrutiny and promotion within proceedings.

Thirdly, and this is not my primary purpose, it is the intention of those who act on behalf of St to pursue either or both a complaint and/or other remedies in respect of her against the Local Authority and it may very well be that there are matters covered in this judgment that they consider to be of use in pursuing such courses of action. Providing assistance for those proposed actions is certainly not my primary objective and neither would it be proper for that to be a primary objective. The judgment is therefore mainly given in the hope that the Local Authority might reconsider and to highlight the difficulties that have beset this child who has unfortunately fallen between two statutory umbrellas of protection.

 

As nobody was “looking after” St, and her parents had effectively stepped away from her, when she was in the hospital nobody had provided her with funds or the wherewithal to even have basic funds to buy toiletries or christmas presents for her siblings.

 

The hospital were firmly of the view that the Local Authority ought to be looking after St

I therefore have a full letter dated 21st May 2014 written by Dr K, a consultant child and adolescent psychiatrist at the hospital, the responsible clinician for St. The letter sets out his perspective upon what he regards as the necessity of ongoing looked after status during admission. I am very grateful to him for providing that. He says at paragraph 3 of that:

“I find this to be an unusual position and not one which is taken by other local authorities who have responsibility for looked after children who are placed on [name of hospital given] unit.”

He goes on to say:

“I am not aware of any hospital ward that would take parental responsibility upon themselves. Provision of care in loco parentis is much the same as is provided by schools or residential homes and specific decisions regarding treatment require the hospital to seek consent from the individual with parental responsibility in a similar manner as would be the case in the community.”

He also goes onto say that St, for the most part, may have the ability to give her own views but that there will be times when that may not be the case given her illness. He says this:

It may also be worth clarifying limitations of the Mental Health Act in regard to consent to treatment. Section 3 allows for the provision of treatment for a mental disorder to be provided within a hospital setting and as such it allows for treatment to be given under certain circumstances against a patient’s wishes or where they lack mental capacity to give their valid consent. However, the MHA only relates for treatment of the mental disorder, it does not make provision for physical health conditions to be provided against a patient’s wishes, nor does it allow for any other decisions to be made about wider aspects of a patient’s affairs and lifestyle. In the case of a minor, such a decision is either required to be made by taking valid consent from the patient or where this is not possibly by seeking consent from the individual with parental responsibility. There is no legal provision within the Mental Health Act, or any other statute of which I am aware, that allows for a hospital to take parental responsibility upon themselves. In fact I would argue that is strongly in the interests of the young person that a party independent of a hospital hold this role, particularly when the young person is detained by the hospital against their will.”

He goes on:

Moreover, the benefits of continued looked after status whilst a minor is placed within a hospital setting go beyond the provision of valid consent for decisions that do not relate to the mental disorder. Given the complexity of St’s case and the nature of her social care needs it appears essential to me that she has the benefit of a social worker taking a parental role so as to provide her with continuity and stability of care as well as advice and support around the many challenging issues that she is currently facing.”

Equally that was the view of both Mr Jackson and Mrs. Walwin-Holm, the children’s guardians who have at different times represented St within these proceedings. Dr K’s perspective is that of an experienced clinician working within an acute setting to alleviate the distress and improve the situation of young people in the very distressing circumstances that St finds herself. Any person in hospital, whether a young person or a child or not, seems to me to need – and I apologise for being intensely practical – moral support, social support and financial support. My focus here is upon this child during this admission.

 

By the time of the hearing, the Local Authority had wisely reconsidered their decision to treat St as no longer being a looked after child. That of course does not prevent St or her representatives from satellite litigation about whether that decision was unreasonable and whether it had a deleterious effect on her.

 

I don’t think that the Judge really warmed to Mr McHale, the senior manager who had made the original decision to stop treating St as a looked after child.

   I should, in passing, take some comfort from Mr McHale’s approach to the views of the clinicians. This paragraph I read from his statement, of 23rd July 2014 also reflects his oral evidence when he was challenged. He says:

“While I respect the views of my health colleagues, they do not have a full understanding of the roles and responsibility of CSC in relation to children and young people and although we would always listen to their opinion, ultimately it is our responsibility to decide how we deal with individual children and their legal status.”

So I should perhaps take some comfort that the Local Authority are no more prepared to defer to the clinical view than the court’s view.

 

Ouch.

 

On discussing how that decision was made, and why, the Judge had this to say  (underlining mine for emphasis)

 

I am not going to attempt to make a finding of fact as to what the reasoning actually was or what was actually decided. Mr.McHale claims that it was a child specific welfare focused decision. If it was, it seems to me that it worked very badly indeed because it had an immediate impact upon the service that St was receiving for the worse. She ceased to receive any financial support from the Local Authority and the level of moral and social support given to her also decreased in the wake of that decision. There was a CPA (Care Programme Approach) meeting at the hospital in December 2013 which the Local Authority did not attend. St therefore lost her Looked after Child status and the review system, she lost her independent reviewing officer, she lost the duty of the Local Authority to promote contact between her and relevant people and she was left with no money for basic necessities. She is said to have felt abandoned, a feeling that she has been reported as having to have felt on a number of occasions during the proceedings.

Mr McHale asserted that this was never his intention and that in fact what he intended was for all those services St had been receiving under s.20 to be continued by way of an exercise of discretion under s.17. The Local Authority have not brought any contemporaneous documentary evidence to support this assertion. Mr. McHale was apologetic for particularly the loss of money for St which had an intensely distressing effect upon her in circumstances I will come to describe. In general however it seems to me overall that the impact of the decision, whether specifically child focused or a matter of policy, was deleterious to the welfare of the child. It seems to me as a matter of common sense and experience that if somebody is admitted to hospital they do not change their usual home or their residence. They go to hospital to be treated for the duration of an illness. It seems to me highly unlikely that a Local Authority would even contemplate changing a child’s status from s.20 to s.17 if that child were to be admitted to hospital for treatment for any serious or long-term physical illness. It therefore seems to me quite inappropriate that this child, who was subject to s.3 of the Mental Health Act and detained for treatment in hospital for a mental disorder should have lost a status which conveyed rights upon her which would have continued had the illness requiring treatment not been a mental disorder

It seems to me that the care programme approach of the Mental Health Acts should work hand-in-hand with the Looked after Child processes of the Children Act. These schemes should not be alternatives but should be complementary. That would seem to be the view also of the clinicians. The Local Authority and other parties to these family law proceedings have concentrated on St’s right to services upon discharge from hospital, whether as a Looked after Child entitled to a Pathway plan and services for leaving care or otherwise. That is not the focus of this judgment not only because it should not be the focus of this judgment but also because upon discharge from hospital under the Mental Health Act St will be entitled to extensive services both from the health authority and the Local Authority under s.117 of the Mental Health Act.

My concern is that St’s circumstances on the ground were acutely and deleteriously affected by her change of status and this was also the view of the clinicians at the hospital which was expressed during the CPA meeting to which I have referred on 13th December 2013. I have the record of the meeting in which the following is recorded:

“On admission to [name of residence given] St was under a looked after child s.20. Whilst in hospital her case has been closed and she is no longer considered to be looked after. A senior support worker has not been allocated to ensure that St continues to have involvement with services whilst she remains in hospital.”

Later, the meeting, minutes record this:

“Members of the meeting expressed frustrations and difficulties associated with the removal of St’s LAC status due to her being in hospital. Difficulties arise in particular around St’s physical health and the need for parental consent for certain forms of treatment, despite the current lack of contact and care from St’s parents. There is also a lack of money for St now. Kayley I, advocate, also expressed St’s views and distress at the lack of monies. Options were discussed as to how this could be managed. Funding agreed from social care that St to receive £20 a month for toiletries, all agreed that this is not enough. The meeting discussed making a complaint to the Local Authority about the removal of a young person’s looked after care status when a young person becomes an inpatient and all agreed this would be a good idea.”

 

[I think the Judge's analysis that if this child had been in hospital for a broken leg there would have been no suggestion that she was no longer looked after by the Local Authority is a very good one, and it is a good way of looking at it. It may be, and it would require a delve into the Regs that is beyond my current level of enthusiasm and curiousity that this child is not technically s20 but it must be manifestly better for her to have treated her in all ways as though she were]

 

In case you think that the Judge was social-work bashing in this judgment, she clears this up.

 

Mr McHale in his evidence, having read what was trenchant criticism of the Local Authority written by Mr Jackson the then child’s guardian, repeatedly asserted that he considered that the Local Authority had delivered an excellent service to St. In that sense he seemed to me to be understandably taking up cudgels on behalf of his staff. I hope he understood, and I hope that anybody reading this judgment understands, that this judgment is intended to be critical, indeed trenchantly critical of the decisions of the Local Authority. However it is by no means intended to be a criticism of the staff who have been working the case on the ground. It is my impression that those staff, that is Mrs S and her manager, have delivered, as Mr McHale asserts, an excellent service to St within and despite the parameters of the decisions of their senior management. This judgment is not intended in any way to undermine that impression. This court, the social workers on the ground, their managers, the clinical team and the children’s guardian are all motivated by having come across a child in St’s situation to improve her situation. My focus has been on how the realisation of that aspiration has been marred by the decisions of senior management. I therefore agree with Mr McHale that his staff have delivered an excellent service to this child. This is despite the decisions that have been made by their senior management.

 

 

This isn’t social work bashing – this is manager bashing. Short of Mr McHale writing to the younger children to tell them that there was no such thing as Father Christmas, there was not much lower for the Judge’s opinion of him to go.  The overriding judicial impression I was left with was (to borrow from Mark Twain) that the moment had arrived for Mr McHale to leave this world and to declare to the Court which of the two possible destinations he was heading for, so that the Judge could make arrangements to head to the Other Place.

I don’t know Mr McHale, let us be charitable and say that this was one where his actions were out of character (and to be fair, it is legally tricky as to whether s20 technically applies here).  It is never fair to butcher someone based on one case alone, particularly a tricky one.

 

The LA, in the light of all this made the submission that the case should now come to a close and the Court bow out and let the LA get on with it.

 

The word on the tip of your tongue is ‘bold’  – that’s a ‘bold’ submission.

 

That doesn’t really go far enough – that’s a submission for which an advocate is entitled to have a stuntman for.

 

Do we think the Judge agreed with their Stuntman submission?

The Local Authority case, put with admirable clarity by Miss Grundy in her written submissions, is that now is the time for the court to bow out completely not only in relation to St but in relation to all of the children and that the proceedings are ready to be concluded. There are cases when that is entirely right and the court should take a focused and issue specific approach to dive in and dive out of children’s lives and not exercise a more surveying role. In this case I decline to do so. It seems to me necessary that the proceedings continue and the court will bow out when the court is assured that that contact is set to continue appropriately and that all of the necessary services are going in. I flagged up to the parties the possibility of a family assistance order at the final hearing. No party considered this to be a good idea. This court’s scrutiny is going to be upon all of the professionals involved in any event, whether they remain in via s.37 or merely as witnesses. I note that the Local Authority decline to accept a family assistance order as well.

I would very much hope that the Local Authority will consider what I have said in this judgment. It is to be transcribed and published. It seems to me right that the plight of children who are subject to both the Mental Health Act because they are ill and need to be detained for treatment and to the Children Act because they are likely to suffer significant harm attributable to being out of control or by reason of parental default is one that should be brought to the public attention.

 

 

 

 

Re-branding Child Arrangement Orders – draft MoJ press release

 

Now look here, you silly plebs. When we changed the name of Custody and Access to  Residence and Contact, you were all supposed to realise that these new fluffier terms meant that it wasn’t worth fighting about who got which order and that you’d just agree very quickly who was going to get what and save money.

Well, that didn’t work, so then we came up with the super wheeze of calling both orders by the same name – Child Arrangement Orders.

You people just don’t seem to get it.  Once the order has a neutral name, you’re just supposed to agree to have one and go away and stop bothering our Judges and trying to get in to public counters to talk to Court staff.  The rebranding to Child Arrangement Orders hasn’t worked either. It seems that people still want to fight about where the child will live, and how much time the child will spend time with you. Selfish, that’s what we at the MOJ call it.

 

We now realise where we went wrong. It was in calling the orders the same thing to both parents, whether you got the order or the other parent got it. Of course that ends up making one person feel like a winner and one person feel like a loser. We have now fixed that.

 

In our example orders, imagine that the children live with / are Resident with / are in Custody of Robin, and spend time with / have contact with / has access with Evelyn.

 

Here is what Robin’s order looks like

 

1. The children will Get to Spend Nearly all their time with you Robin! They will grow up loving you best and you are thus, the winner!

 

2. The children will Begrudgingly Have a Boring Time with Evelyn every other weekend. In the meantime, you get every other weekend to Find Yourself! Why not learn to tango, play the guitar, read Dr Zhivago in the original Russian, get twatted with your mates who all hated Evelyn anyway.  You are thus, the winner!

 

 

And here is what Evelyn’s order looks like

 

1. Robin will be the N0-Fun Parent. Robin will be responsible for making packed lunches, nagging, making the children tidy their room, dealing with 90 per cent of “Are we there yet?” queries and late night vomiting, and the ironing. Oh, so much ironing.  Robin will find it hard to meet new people and friends because they are to have the life of Drudge. Did we mention the ironing? You are thus, the winner!

 

2. The children will have SUPER-FUN time with you, every other weekend. The SUPER-FUN time will be directly compared by the children to the life of drudge and nagging with Robin. You are thus, the winner!

 

Neither parent will ever, ever ever see the other parents order, and this will be all that it takes to make each of them leave court knowing that they, and only they, are the winner!

We at the Ministry of Justice are pretty sure that this will work. In order to further distract parents from the reality of how awful it is to be parcelling up your children and bitterly quarelling with someone you used to love but no loathe and knowing that all the while you are screwing your children up for decades to come, the orders will now be printed on shiny silver paper. Oooh, shiny!

 

 

[Suesspicious minds was so distracted by the new shiny silver paper orders "Is that tinfoil?" that he wrote Child Assessment Orders instead of Child Arrangement Orders. Every single bloody time.  What a divvy]

Reversing the burden of proof – injury to a child

 

There have been a few reported cases where the higher Courts have said or hinted that a fairly traditional medical formulation “that in the absence of the parent providing a benign explanation, this injury was caused deliberately” is a reversal of the burden of proof and not acceptable in law.

 

The decision of the Court of Appeal in Re M (a Child) 2012 comes out very badly and explicitly says it, and the decision is exactly on this point, and for that reason I think it is the best authority for the principle.

 

[In fact, looking at this again, I think this is the exact very same case that established the point that I had come across in summaries, and we have waited 2 years for the actual transcript of judgment. That’s pretty shocking, given the importance of it as a principle for other cases. I had momentarily forgotten that we were STILL waiting for this judgment, because the original summaries came out 2 years ago.   This might be a big deal, because if it had been reported earlier other families might have made use of the principle]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1580.html

 

The appeal begins with Ward LJ identifying that as ever, there was not an order produced following the finding of fact which was strictly capable of being appealed

 

 

As is so typical with fact-finding matters coming from the Family Division, no order has been drawn which is strictly capable of being appealed, because nobody bothers to formulate preliminary issues which the judge can then decide and encapsulate in an order which is the proper subject of the appeal. Instead, what frequently happens, and has happened, the order simply recites:

 

 

“And upon HHJ Hammerton handing down a written judgment following a fact finding hearing, in which the court found that the child had suffered non-accidental injuries and that the parents are both possible perpetrators of those injuries

The Court Orders…”

 

And then there were a series of directions being made. But I have said that before; nobody takes any notice. The rantings of an old man are simply passing into the ether

 

 

People do always seem to forget this, and Ward LJ is right to remind practitioners. What is appealed is the ORDER, not the judgment. The thrust and focus of the appeal might well be on why the analysis of the judgment shows that the Judge was wrong to make that order (or in these post Re B-S days does not show sufficiently clearly why the Judge was RIGHT to make the order, which itself is sufficient to make the order wrong)

 

There ought to be a draft order produced to the Judge (ideally one prepared by the LA at the outset of the hearing, but probably adjusted post judgment to reflect the findings that were made) setting out each of the discrete issues on which the Court was asked to make a determination and the determination that was reached. The findings need to be on the face of an order   (or more accurately in our new standard template order regime somewhere on page 6 of the order) not just tucked away in a judgment.

 

 

Anyway, on to the real matter. This was a case involving a total of nine bruises to a child, the child being around eight weeks old at the time.

 

Ward LJ summarises the basic legal principles in the crispest way I have ever seen it done. He should patent this.

 

I have no intention of elaborating on the law, because the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed. Whilst it is necessary to establish that the injuries are, as has been described in this case, non-accidental, it is not necessary to identify the perpetrator, and it is permissible for the court to say that those who are within the pool of possible perpetrators remain possible perpetrators, and the local authority must then manage the case as best it can in the light of those findings.

 

 

The Court of Appeal summarise the medical evidence given by two experts in the case

 

 

  1. The injuries to the left forearm were really divided into three. There was, firstly, the circumferential mark around nearly all of the forearm, with two small, almost parallel marks perpendicular to it. Dr Essex said of that mark in his written report that it was:

 

 

“…consistent with some restriction or pressure effect from something causing pressure on the skin of the forearm. I cannot explain the two additional marks perpendicular to the circumferential mark. The linear and angular nature of the marks on the forearm looks like the effect of something ‘mechanical’. In other words, an object having pressed on the skin.” (His emphasis)

 

In an addendum to the report, he spoke of the child coming into contact with a firm/hard inanimate object. I interpose by stating the obvious: these are not marks consistent with finger pressure or the use of the hand, save perhaps for holding the object pressed against the child’s left arm.

 

 

  1. The second category of injury to the left forearm was the red, circular bruise below the elbow. Dr Essex did not know how that was caused. The third injury was the bruise to the left wrist, which again Dr Essex could not explain, save that he observed it was a very unusual place for a baby of that age to get a bruise. The judge recorded in paragraph 34 that Dr Rouse agreed with Dr Essex about the mark on the left forearm. He, too, was unable to explain the marks. He agreed they seemed to have some mechanical cause. Dr Rouse stressed these were an imprint type of injury. He agreed it was impossible to say how the bruise below the elbow had been caused. He agreed the bruise on the inside of the left wrist was a very unusual place for a bruise given that it is a naturally protected area, and that the underlying tissues are tightly bound down with little space for a bruise to develop. The judge noted that there was agreement in respect of the linear bruises to the right arm, and Dr Rouse emphasised that, where the general impact is with a body, a round or oval-shaped bruise will develop; where there is a pronounced V-shape, it implies something with an angled edge which must be mechanical, in other words man-made. In respect of the bruise on the inside of the left thigh, both experts agreed this was an unusual case for a bruise. Dr Rouse regarded it as a different type of bruise to the ones on the arm; he described it as being a more diffuse injury. He described it as having a pronounced rhomboidal outline; the straight line suggested more of an impact which is associated with a traditional bruise.

 

 10. Various explanations were proffered for those bruises, and the judge went through each and every one of them. First, it was suggested that M’s arms may have been trapped under the straps of the baby seat; for reasons given, that was rejected. It was suggested that swaddling may have been responsible; that, too, did not find favour. Although Dr Rouse felt that possibly the bars of the cot may have been responsible, Dr Essex did not. Both dismissed the baby bath as the object which could have caused the injury; it had been suggested that the baby had been thrashing around in the bath, which was highly unlikely. There was a suggestion that perhaps the family dog had jumped on poor little M, but nothing in the injuries was compatible with that. The judge’s conclusion was that, insofar as Dr Essex and Dr Rouse held different views, she preferred the evidence of Dr Essex. The possibility of some cotton thread explaining the injury around the child’s arm was raised; Dr Essex thought it unlikely and he did not agree about the cot being a possible instrument for harm.

 

 

11 So the judge came to the conclusion, which she expressed in paragraph 51 in these terms:

 

 

“Apart from the two issues identified above [that is the cotton thread and the cot], there was a consensus between the experts. In their view the injuries were unexplained. Dr Rouse described the injuries as being unusual for non-accidental injury [but] he confirmed to counsel for the guardian that they were unusual for accidental injuries.”

 

The judge recited Dr Essex’s view when asked for his overall conclusion. She said at paragraph 56:

 

 

“He said he reached this having looked at ‘all reasonable and unreasonable possibilities and explanations. It was against the overall picture, the age of the child, the number of injuries and the site of the injuries. Putting all these together he could not find a benign explanation.’ I found that his opinion was a considered opinion. I reject the submission that his conclusion was predicated on the fact that if there was no explanation, the injury must be non accidental.

 

57. The suggestion that Dr Essex has overstepped the line which demarcates the field of responsibility of the expert from that of the court is not in my judgment made out. Dr Essex was asked in specific terms whether the marks shown in the photographs are likely to be accidental or non accidental. He provided an answer that in his professional opinion they were non accidental.

58. I did not form the impression that there was a great difference between the evidence of the experts, it seems to me there was broad consensus. I am not persuaded that the evidence of Dr Essex was in any way unreliable, to the contrary I found his evidence compelling.”

 

 

 

[The underlining here is mine for emphasis – you will note that the trial Judge specifically considered whether Dr Essex had reversed the burden of proof in his evidence and concluded that he had not. This had obviously been an argument run by parents counsel at the time, and the trap had been set ]

 

 

Having then heard the parents evidence, the Judge reached the following conclusions about the injuries (again, underlining is mine for emphasis)

 

“86. Weighing all the evidence in the balance I return to the fact that the medical evidence is clear, the distribution and number of bruises could not have been caused by the baby himself and there was no medical explanation. It was submitted that unless the doctors can provide an explanation of the precise mechanism of injury, it is impermissible to infer that the injury must have been non accidental. I find that statement to be too sweeping. The doctors are agreed that pressure has been applied to the skin which has been sufficient to cause bruising. Whilst these are described by Dr Rouse as being towards the lower end of the scale for the amount of force used, the marks are to be distinguished from the superficial marks caused by, for example, the elasticated edge of a sock. The marks were described as vivid red; they remained clearly visible for 3-4 days. Further and importantly, the marks were unusual in their number, in their distribution and position.

 

87. In the face of medical evidence where there is no substantive disagreement between the experts, this is a case where I am satisfied that the injuries sustained by M were non accidental. I am not persuaded by the evidence of the parents. The impression I gained was that I was not being told the entire truth as to the events of Friday evening and Saturday morning.

 88. In terms of identifying the perpetrator I am unable to do so. There is evidence that the mother was the principal carer for M. She did the lion’s share of the tasks of feeding and changing and clearly took the lead in decision making. The father did some of the tasks, he would make up bottles and comfort M while bottles were being made up. He was responsible for swaddling. It was clearly the mother’s decision to delay taking M to the doctor until the Monday, having said that it was she who was proactive in asking questions and significantly providing photographs which showed the bruises as being more serious than their presentation on Monday. During the material time frame when the injury must have been sustained, both parents were present in the home. Save for the period during Saturday morning when M was downstairs in his baby chair, he was in the bedroom with his parents. The father emphasised there were no carpets upstairs and accordingly it was possible to hear what was happening downstairs. This is a case where if one parent injured M the other parent would be aware. Both deny there was any incident. In the circumstances both must remain in the pool of potential perpetrators.”

 

 

This is what the Court of Appeal had to say about the Judge’s reasoning (Ms Scriven QC was representing the Local Authority)

 

 

14…The harm must be attributable to the care given to the child not being what it would be reasonable to expect a parent to him. That is the language of section 31 of the Children Act. So Ms Scriven mounts a very persuasive argument that the constellation of injury, and site of the injury, the mechanism for the injury, and the narrow timeframe of perhaps up to 18 hours or less during which these injuries were inflicted, all lead ineluctably to the conclusion that this was non-accidental injury.

 

 

15. The elements I have outlined do give establish a case to answer that the care given to this baby was not reasonable care, but outside the ordinary course of events, and that justified the inference that the threshold had been crossed unless the parents could discharge the evidential burden which would have shifted to them. It was a persuasive argument, but the difficulty I find in accepting it is that that was not the case the court was required to consider. The judge was not considering, as might have been the case, whether there was some general failure to provide proper care. She was being invited to find, and she did find, that these injuries were deliberately inflicted by one or other, or both, of the parents.

 

 

16. On the medical evidence, at least some of those marks were imprint or pressure marks made by some inanimate object coming into contact with the child’s arm. But what object, or even what sort of object, remains unexplained. Also unexplained is how that pressure was exerted. Was it a hard jab, causing the momentary infliction of pain, which might have caused the baby to cry, or was it more sustained and consistent pressure, which may not have been as painful to M? The truth, as acknowledged by the experts, is that we simply do not know. This is not a case like a child with a broken leg, or a shaken baby, or a cigarette burn, or finger pressure marks. We simply do not know what happened to M and we do not know how it happened. The conclusion that it must have been non-accidental injury was formulated by Dr Essex, and it was that which was accepted by the judge and formed the basis of her judgment. Dr Essex put his case, it seems to me, at its best under cross-examination of Miss Topping for the guardian, and this exchange seems to me to encapsulate what this case is about, at page 25 of the transcript of his evidence:

 

 

“Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] ‘As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental’, at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation.”

 

That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury.

 

 

Poor Miss Topping, who was present at the Court of Appeal hearing must have been mortified that what seemed at the time to be solid sound questions ended up destroying the case that she had been building up. I feel for her, there can be no worse moment for an advocate than that.

 

 

With that paragraph ringing in people’s ears, Ward LJ went on to put the nail into the coffin

17. I fear therefore that in this case, despite her careful analysis of the evidence, the judge did fall into that error. The judgment on the lack of protection by the parties is so short of reasoning and in fact, with respect to her, here so difficult to understand that the local authority do not seek to uphold it. We do not know whether the child cried, whether loudly and at length, or whether this was a sustained injury which caused discomfort not noticeable to anybody else. So that part of the finding is, as Ms Morgan submitted, flawed, but in finding as she did that this was a non-accidental injury, I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby

 

 

This is not, bear in mind, a case being resubmitted for a re-hearing, but the findings just being overturned. That would effectively be the end of the case.

 

It is for the Local Authority to prove, on the balance of probabilities, that it is more likely than not that the parent injured the child and how; and that evidential burden is not satisfied by the absence of evidence of a benign explanation.

 

 

 

Making eye to eye contact (post adoption contact applications, some practical queries)

 

I’ve previously written about the relatively new provisions of the Children and Families Act 2014 that allow a birth parent to apply for direct contact even years after the adoption order was made.

http://suesspiciousminds.com/2014/03/16/applying-for-contact-after-a-child-is-adopted/

 

I’m grateful to regular reader and commenter, Jerry Lonsdale, for posing me some questions that I didn’t know the answers to, and thus for making me go and find unexpected answers.

The provisions are set out in a new clause s51A of the Adoption and Children Act 2002

In order to make the application, a parent would need to obtain leave of the Court, and the Act sets out the things that the Court would need to consider.
S51 (5)In deciding whether to grant leave under subsection (4)(c), the court must consider— .
(a)any risk there might be of the proposed application disrupting the child’s life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act), .
(b)the applicant’s connection with the child, and .
(c)any representations made to the court by— .
(i)the child, or .
(ii)a person who has applied for the adoption order or in whose favour the adoption order is or has been made.
[It might have been helpful, given the wrangle that has previously taken place about whether leave to oppose adoption or leave to revoke a Placement order applications are applications to which the welfare paramountcy test applies for Parliament to have made that explicit. I think, though I would not put money on it, that when deciding the application for LEAVE, that the welfare of the child is a paramount consideration.]
We are probably getting the first of these applications made at present (and I’m aware that there is one such case in the High Court where the practical issues are becoming exposed)
In terms of practical issues, let’s look at them in turn – this has been a valuable exercise, because one element that looked very problematic when I first considered it has actually resolved on very close inspection. It might save someone else the detective legwork in the future.
1. How does the birth parent serve the adopters?

The birth parent won’t know the adopters address and nobody is going to tell them it. The Court MIGHT know it, if they were the Court who dealt with the adoption and they still have the file; assuming that the adopters have not moved since the adoption order was made. The other option might be for the Court to ask the Local Authority to serve the adopters – assuming that the Local Authority are willing to get involved and that the Local Authority have an address for the adopters. (Adopters aren’t obliged to keep a Local Authority informed of any change of address – they MIGHT, if they have a good relationship with their support worker or if they are receiving financial support)

You can’t go ahead with the application if the adopters aren’t served, because (a) that’s going to result in article 6 breach to the adopters and (b) The Court is obliged to consider the views of the adopters.
So not having a solid practical solution to that aspect is somewhat troubling.

If the adopters happen to have moved overseas since the adoption order was made, it is not at all clear to me that the provision would have any force at all.
2. Who is a party to the application for leave?
Well, the birth parent making the application is a party. The adopters would be a party, as respondents. And erm, that’s it.

The Local Authority are not a party to proceedings. They no longer hold any order in relation to the child, since the making of the Adoption Order ends their Care Order.

These applications are NOT specified proceedings for the purposes of section 41 (6) of the Children Act 1989 , and are thus not proceedings for which a Guardian is automatically appointed.
As we already established that applications under s51A don’t attract public funding (unless the applicant or respondent can convince the Legal Aid agency to give them ‘exceptional’ funding under s10 LASPO, which is as likely as Alex Salmond inviting David Cameron to rule Scotland by his side at the end of the month – perhaps wearing a Darth Vader costume) both the birth parent and the adopter will probably be litigants in person.

As such, neither of them will really fully grasp the test and the nuances and if we ever get any case law on it, won’t know it. Not their fault, it doesn’t mean that they aren’t bright or articulate, just that this whole thing is pretty impenetrable AND brand-new.

Probably neither of them will have a full set of the previous adoption papers and care proceedings – the adopters certainly won’t. The parents might, if they kept hold of them for a few years and ever had a complete set anyway.

So a Judge will be faced with two litigants in person (and a set of litigants who almost certainly won’t want to come into contact with each other), who don’t have the past papers and won’t know the law and process.
2(a) Options to get other people involved

The Court could invite the Local Authority to become a party. That would be an invitation – the LA can’t be forced to become a party. One would hope that the LA take up that invitation, but they might not. They might consider that the adoption was years ago and that everyone who knew the case is long gone, they might think that the adopters are from another part of the country miles away and that it would be better for THAT LA to be involved rather than them, the birth parents and adopters might not be living in that particular Local Authority by the time the application gets made, they might just be short-staffed and poorly funded or bloody minded.

If the Court invites the LA and they decline, I had initially thought that this was the end of it. It is not!

Rule 14.3 Family Procedure Rules 2010 (the section relating to any application under the Adoption and Children Act 2002, which this would be)

14 (3) The court may at any time direct that—
(a) any other person or body be made a respondent to proceedings; or
(b) a party be removed.

The Court therefore has the power to MAKE a Local Authority be a Respondent to such an application. And once they are a Respondent, the Court can make them file documents, skeletons, statements etc.

The application isn’t specified proceedings, but the Court can still appoint a Guardian, by appointing the child as a party under rule 14.2 of the Family Procedure Rules 2010 and then appointing a Guardian to represent the child.
(2) The court may at any time direct that a child, who is not already a respondent to proceedings,
be made a respondent to proceedings where—
(a) the child—
(i) wishes to make an application; or
(ii) has evidence to give to the court or a legal submission to make which has not been
given or made by any other party; or
(b) there are other special circumstances.

[You can’t do it under Rule 16.4, because that expressly excludes doing so in an application under the Adoption and Children Act 2002, so rule 14.2 is the solution]
You can of course still get the difficult situation where Local Authority A dealt with the care proceedings, the child is placed with adopters in Local Authority area B, and by the time of the adoption the birth parents are living in Local Authority area C. Which Local Authority does the Court make a Respondent? Which of the three areas provides a Guardian?

 

3. How does the Court make the enquiries about the risk of the application being disruptive / the benefits of it?

 

Well, it becomes substantially easier if the LA and Guardian are drawn into the mix. The Court can direct that those agencies carry out an assessment and provide a report.

If they are not made parties, the obvious solution that occurred to me was that they be directed prepare a section 7 report, but there is no power to do that on a s51A application for contact.

Section 7 of the Children Act 1989 (the power for the Court to direct that the Local Authority or CAFCASS provide a report to the Court advising on contact) applies to applications made under the Children Act 1989, and s51A applications aren’t.
4. What is the test going to be ?
Historically, the senior Courts have always made heavy weather of “leave” applications – they have always wanted to add gloss to the statute – often so much gloss that the test that one ends up with bears little relationship to the statute itself. You only have to look at the variety of judicial shorthand guidance on “leave to be joined as a party” in care proceedings – we have had everything from ‘arguable case’ to ‘strong arguable case’ to ‘strong prospect of success’ to ‘not vexatious, frivolous or fanciful’ and we now have the Court of Appeal guidance that one has to frankly forget all of the previous shorthand and guidance and just go back to what it says in the statute as factors to be considered and add in the human rights principles of right to family life, proportionality and right to fair trial.

But we do have slightly different tests for “leave to be joined as a party”  (which is the “it’s the Act, stupid” test), “leave to revoke a placement order” (which is still officially Warwickshire, though everyone really thinks it ought to be identical to B-S) and “leave to oppose adoption” (which is B-S)

Which of those tests, if any, is going to apply to these applications?

Does the historical law on making a contact order post adoption still apply? (in essence don’t make a contact order if the adopters are agreeing to the contact and don’t make a contact order in the teeth of opposition from the adopters – leaving only a tiny patch of possible contact orders in wholly exceptional cases)

Is there a presumption that contact is good? Or a presumption that the status quo should prevail? Are either rebuttable presumptions? Or is it a completely blank sheet of paper?

Who the heck knows?

 

Working with foreign authorities – the DFE guidance

 

I know, I’m as beleaguered as the rest of you with guidance and strictures and practice directions and “you must do this”  and “It is outrageous that nobody took account of the 1412 French bylaws about how to proceed in a case where a parent has ever been within five hundred feet of a member of royalty, what were you all thinking?”

 

But this piece of guidance from the DFE is actually short and is trying to be helpful, which makes a huge difference.  I used to deal with a case involving assessment of an overseas relative once every year to year and a half. Now it is a monthly occurance. That’s not to bang the UKIP drum, it is just a reflection of the different make-up of our society now.

 

http://www.familylaw.co.uk/system/redactor_assets/documents/1303/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf

 

It provides guidance for when a Local Authority is considering placing a child overseas or conducting an assessment of relatives overseas. It would be worth handing out to lawyers and social workers dealing with those cases. It offers very practical guidance, and holds out the offer of support from other Government agencies (so at the very least, writing to those agencies and quoting them the guidance may be of benefit.

 

It also has a helpful list of contacts, recognising that family lawyers aren’t specialists in international law (if we were, we’d be doing international law and having much much nicer holidays and cars)

 

There were a couple of things new to me – firstly that there are countries where a social worker’s qualification and licence would not be recognised and thus they CAN’T conduct the assessment themselves, and secondly that there are countries where the STATE needs to authorise a child being placed in their country. It would be helpful, if the DFE were minded to, to produce either a list of both, or where that information can be found.

 

I’m a sausage machine, a perfect sausage machine

 

Agatha Christie, the doyenne of ‘cosy’ crime novels and the creator of Hercule Poirot and Miss Marple, once said of herself that she was “A sausage machine, a perfect sausage machine”.  She was talking about how her publishers thought of her, which was that their only real thinking about her was whether she could produce another book and at the time of their choosing.

I spent Friday afternoon with one of my favourite social workers and when we reached the point of saturation on talking about the detail of the case and the task that we had to complete, she said something that has been kicking around in my brain for a while.

What she said was “Once you get a case into Court, the whole thing, every single conversation you have becomes about WHEN”

She’s right. When I started this job, the cases felt like they were about real children and real parents and real situations. When you went to Court, that was predominantly what you talked about – what was happening in the real world for this family and the PROCESS was secondary.  Over time, the discussion about process became longer and the discussion about the family became shorter. The orders got longer and more labyrinthine, and less easy for a normal human being to follow. The balance has got more and more out of whack, to the point where now, the entire time at Court can be spent talking about the Court’s process, and in particular just getting the clockwork mechanism in place to make the case conclude by week 26.  Sometimes I look over at the parents, who are in Court frightened or confused or worried and I can see that none of this sounds or feels as though it is about them at all.

Everyone in a Court case is just a sausage machine, and their job is to produce the goods on time. If you are someone who has a job that involves a lot of Court proceedings, your entire working week can be spent being a sausage machine – get this done, get that done, have you done that yet? Produce this report, observe this contact, speak to this relative. Make sure you get it all done on time.  And if you are a lawyer, it can be easy to slide into the trap of just being like Agatha Christie’s publisher and that your only communication is to make sure that the goods are being produced on time.  Social workers are people, not sausage machines. And parents and children deserve more than a system that treats them that way.

Of course everyone has to have targets and deadlines, and I’m not suggesting that the cases that just drifted and delay got piled up on delay was a good thing or a golden era to be returned to. But the NHS has targets and deadlines, but it is not so obvious in their client care and bedside manner – you might have a long wait in A&E, but they don’t add insult to injury by relentlessly talking about the target and performance measures when they should be looking at your injury.

I am finding that over the last year, I have social workers say to me that in order to make a rehabilitation work, or a placement with a relative work, or to get the right decision about a child more time is needed to do it properly, and I have to keep saying “Well, we can ask, but the Court is supposed to say no”.   That doesn’t feel very nice.

Again, in the past the phrase “constructive delay” was used as a blanket excuse to justify any delay, any extra assessment, any attempt to leave no stone left unturned, but in throwing it away as a concept, we may have lost something really important. Let’s not forget that what we are doing in care proceedings is making decisions about whether a child can be safe with their parents. That’s a process that involves to an extent an educated or informed prediction about the future – something that isn’t easy to do. If you have less information than you want to make you feel confident about your prediction, don’t you end up with people playing safe?

If the social worker conducting an assessment really feels that more time and more work would make that possible and can explain why, then surely that IS constructive delay and there should be a place for it?

 

I don’t mean that adjournments should be given out like sweets, and that delay isn’t a bad thing. If there’s something that ought to have been done and nobody got round to it yet, then asking for more time to get it done is bound to incur some judicial displeasure and rightly so. What I’m talking about is where the social worker has done the work, asked the questions and reached a point where the only right answer is that “we just need to give this some more time to get the right answer”

 

(That’s something that one of the midwives of 26 weeks, Ryder LJ was talking about in the Re K case recently. Not in that context, but in the sense that just because there’s a time pressure doesn’t mean that a Judge should not sometimes step back and say, “It is better to wait and get this right, rather than do it now and get it wrong”.   In the wise words of Billy the Kid  “Speed’s fine, partner, but accuracy’s final”)

 

A pivotal moment in any Agatha Christie novel is the scene where the detective gathers all the suspects together and reveals the solution to the case. That has quite a bit in common with a social worker’s final evidence. Everyone is waiting anxiously to see it, nobody is completely sure what it is going to say, we know it is going to be important. At some point, someone will say loudly that this is all complete rubbish. And like Poirot’s solutions, there might well be a very difficult Court hearing after it is revealed – it isn’t really the final word on the subject.

Well, Poirot gives his solution when he knows that he has got it right, when all the pieces are in place and he can be sure that what he is saying is right. If he was instead told that by a fixed time in every murder case, he had to gather everyone in the drawing room and tell the assembled suspects who did it, then he would get some of them wrong. Sometimes not all of the suspects have even appeared  (in care proceedings, relatives do come forward late on). Sometimes not all of the clues have come to light. Sometimes he might not even have a clue.

 

If Poirot says that he needs to do some further detective work to reach the right conclusion, he should be given the time he needs, and not be made to feel like he is a disgrace for even suggesting it.

The Ashya King wardship judgment

We have all been eagerly awaiting this, and it is now out.

 

This is the judgment given by Mr Justice Baker in the wardship proceedings, setting out the reasons why on Friday of last week a solution was reached that Ashya would be able to receive proton-beam therapy treatment in Prague. Ashya is no longer a ward of Court, and all decisions about him will be made by his parents.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2964.html

 

It is not one of those rambling long judgment that would be incomprehensible to non lawyers – it runs about four pages and most of it is in plain English. I don’t often suggest that normal human beings read a judgment, but in this case, I would. It is a very good piece of work by Baker J  (not surprisingly, he writes a good judgment)

 

[It doesn't answer my law geek question of whether the parents received free legal representation - I hope that they did. They were certainly represented, and the firm they used does do legal aid work. And there's no debate at the end about costs, so I hope they got legal aid. One suspects that even the Legal Aid Agency had enough common sense to not want to be seen to be saying that the family should spend their treatment fund on lawyers]

The judgment focuses rather more on treatment and the future than a forensic delve into the past and what has gone wrong (understandably, because a solution had been arrived at that would please everyone, and also because if there is to be any suing going on about what happened it is likely to focus on the issue of the European arrest warrant and the arrest and detention of the parents, which is outside of the scope of the family Court)

 

What the Judge does say about the application for wardship itself is this :-

 

32 When Mr and Mrs King took Ashya from hospital on 28th August, the medical staff were understandably very concerned that the boy would suffer significant harm by being removed from the specialist care they were providing. When the local authority was informed about what had happened, and that it was believed that the parents had left the country, the social workers understandably concluded that there were reasonable grounds for believing that Ashya was at risk of suffering significant harm by being driven across Europe without medical assistance at a time when he urgently required post-operative therapy. I therefore conclude that the local authority acted entirely correctly in applying to the High Court, and further that Judge Arthur was right, on the evidence before him, to make Ashya a ward of court. My comments are confined to the matters within the family jurisdiction. I make no comment as to whether or not it was appropriate to seek a European Arrest Warrant. I merely observe that one consequence of this course was that Ashya was separated from his parents and left alone for several days in the Spanish hospital. As I observed at the hearing on 2nd September, whatever the rights and wrongs of his parents’ actions, it was not in Ashya’s best interests to be separated from them in such circumstances.

  1. The steps taken by the local authority and Judge Arthur on 29th August were entirely justified on the evidence then available. As at that date, there were reasonable grounds for believing that Ashya was at risk of suffering significant harm. A week later, the picture had changed and the court was faced with a completely different decision.

 

 

I’m sure that there will be many who think otherwise, but this judgment is very helpful in setting out the facts of the case when there has been so much speculation.

 

I am pleased that Ashya is back with his parents and that he is receiving treatment, and whatever else we might feel about this case, I’m sure that all of us wish him and his parents all the very best for the future.

 

 

 

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