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Category Archives: assessment of risk

Who has the burden of proof?

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

http://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

ISIS and children being taken to Syria

I have to say, even after years and years of doing child protection law, I never actually thought I’d see cases in Court where parents were trying to get their children to become terrorists and fight in a war. But we are seeing these cases, and as I understand it, the reported cases are the tip of an iceberg.

If you are advising someone in this situation, or advising a Local Authority where such a thing is suspected, the President’s decision in Re M (Children) 2015 is going to be mandatory reading. It is particularly useful since it sets out in detail the orders made to protect the children and to recover them, and is an excellent route-map for future cases. Rather than drafting from scratch and having to invent what needs to be done  (and I’ve an inkling of just how hard that is in such cases), there’s now a source for how to assemble a workable order that will do the job.

 

https://www.judiciary.gov.uk/wp-content/uploads/2015/05/re_m_20_5_152.pdf

There is one final point I must emphasise in this connection. It is the point made by Hayden J in the Tower Hamlets case (para 18(iv)):
“All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas.”

There’s a very good summary by Marilyn Stowe here, and I recommend that also  http://www.marilynstowe.co.uk/2015/05/21/high-court-considers-family-who-vanished-with-their-children/

 

All agencies worked amazingly quickly and creatively to get these children back into the UK and save them from what would really be unthinkable, that they be pushed by their parents into taking up arms in a war zone.

Proof of facts – High Court guidance on disputed injuries

This is a very short judgment, with not a single word wasted, and it sets out not only a helpful summary of the state of the law on resolution of disputed injuries but clarifies some areas where there has been doubt and confusion.

It does not really need my ham-fisted attempt to summarise it, so I will simply alert you to its existence, and recommend heartily that you read it. [I am inferring that this judgment is setting out points of general principle arising from the Poppy Worthington case – that particular judgment of the facts in the case is not going to be published until the Autumn, when the re-hearing is underway]

 

BR (Proof of Facts) 2015

Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/41.html

Mr Justice Peter Jackson:

 

  • A fact-finding hearing into how a baby came to have a very large number of fractures took place in March and in April I gave a judgment that cannot be published at this stage. This short published judgment touches on three topics of more general relevance, described below.
  • The context is that the local authority alleged that the injuries were inflicted by the parents. They denied this and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in the baby’s bones. Other expert medical opinion considered it more probable that the fractures and other appearances were the result of assaults. It was common ground that there is no known medical condition that might explain the fractures, but that the radiological appearances were highly unusual.
  • The topics that I extract from the fact-finding judgment are these:

 

(1) Proof of facts.(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015).

(3) An analysis of generic risk factors and protective factors.

Proof of facts

 

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
  • Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.

 

(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”

I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

 

  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
  • When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.
  • Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

 

Evidence about pain response

 

  • In the present case, the medical experts commented upon the absence of an account by the parents of any pain response at the moments when the multiple fractures must have occurred. All the doctors stated that fractures are painful, whether bones are normal or not, and that a distinctive pain reaction would be expected from a baby when a bone breaks. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction in the hours and days afterwards might be confused with other childhood ailments.
  • The cause of the fractures was undoubtedly the application of force to the baby by an adult, who must have been touching the baby at the moments when the bones broke. The fractures did not occur spontaneously and the baby did not cause the injuries to itself. The question was whether the bones could have been weakened so that they fractured on normal handling.
  • On behalf of the parents, reference was made to an aspect of the judgment of HHJ Bellamy in Re FM (above). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of Dr Allgrove, who was also a witness in this case, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.
  • The relevant part of the judgment concerns the judge’s observations on the medical evidence about a child’s likely reaction to a fracture at the moment that it occurs. A paediatrician had given evidence that it must have been “a memorable event”. At paragraph 115, the learned judge said this:

 

“As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.”

 

  • Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
  • Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.
  • In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.

 

Risk factors and protective factors

 

  • On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

 

Risk factors

  • Physical or mental disability in children that may increase caregiver burden
  • Social isolation of families
  • Parents’ lack of understanding of children’s needs and child development
  • Parents’ history of domestic abuse
  • History of physical or sexual abuse (as a child)
  • Past physical or sexual abuse of a child
  • Poverty and other socioeconomic disadvantage
  • Family disorganization, dissolution, and violence, including intimate partner violence
  • Lack of family cohesion
  • Substance abuse in family
  • Parental immaturity
  • Single or non-biological parents
  • Poor parent-child relationships and negative interactions
  • Parental thoughts and emotions supporting maltreatment behaviours
  • Parental stress and distress, including depression or other mental health conditions
  • Community violence

Protective factors

  • Supportive family environment
  • Nurturing parenting skills
  • Stable family relationships
  • Household rules and monitoring of the child
  • Adequate parental finances
  • Adequate housing
  • Access to health care and social services
  • Caring adults who can serve as role models or mentors
  • Community support

 

  • In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

 

My blood runs wild (and not as a result of angels in the centrefold)

 

I often kvetch about the President’s burning desire to make the welfare of the bundle paramount (which on the ground is resulting in me spending hours of precious time removing actual EVIDENCE that the Court has ordered be filed from bundles, negotiating with other sides about what statements should be removed, and bracing myself for the inevitable complaints at the final hearing that the whole case is now going to turn on that document), but I do think that His Honour Judge Wildblood QC has a point here.

 

Re A and B (children : fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B48.html

[Of course, when the Judge reads the next blog post, about Ryder LJ’s further pronouncement in the Court of Appeal on fact-finding, he will observe that fact finding hearings are still effectively banned and thus the hearing ought to have never happened, but that’s by the by]

 

i) The bundles. To deliver eight lever arch files to a judge on a Thursday evening for him to start a case on Monday morning is unrealistic where the summarising documentation is inadequate. To those who did so I pose this question: ‘How long would it take you to read that amount of material?’ During the hearing I asked what the advocates’ expectations were of me in relation to enclosures M, N, P and Q which extend to over 1,250 pages which had not been adequately summarised (medical records, Local Authority records etc) and the discussion ended with me understanding that I was asked to read them and summarise them myself during the hearing. That would have been manifestly unfair because the advocates and parties would not then know what I was taking into account when reaching a decision before I did so and would not have an opportunity to comment on things that I discovered. In the end I required a list of pages to be given to me from enclosures M and N and read those. I read the whole of enclosures P and Q over two nights (a total of 542 pages). If I had attempted to read 1,250 pages and each page had taken an average of one minute to read and summarise it would have involved over twenty hours of reading mid-case on part only of the documentation that was filed.

ii) The case was given a three day time estimate which was never realistic, particularly if I was going to be expected to read that amount of material during it. As it is I have dealt with the case in five days and have typed this judgment during the fifth day.

iii) The bundles that were produced were in disarray. Many pages were blank. Many reports were repeated. Some pages were upside down. The medical records were not in chronological order and switched between years randomly. Important documents were not included.

 

Even the purpose of this hearing was somewhat hard to fathom – there were two children A (aged 10) and his half-brother B (aged 7 months). A was in care for other reasons and B was living happily with his mother, about whom no complaint was made. The allegations related solely to the father – there was no proposal that the father move back in with the mother, and his contact was supervised twice per week. There were a wide range of allegations made against the father by the Local Authority (most having emerged from A himself).

  1. In this judgment I am critical of the Local Authority. I list the main reasons why at the end of the judgment. I consider that it has approached this hearing without any adequate consideration of the quality of the evidence that it could place before the court. Its approach has been unrealistic and lacking in analysis. As a consequence, scarce resources have been wasted.
  2. This has been a five day hearing which came into my list two working days before it started, bearing eight lever arch files. On the working day before the case started I held a telephone directions hearing in which Advocate B, Counsel for M2, rightly questioned the proportionality of it proceeding but was told by the Local Authority that it thought the hearing to be necessary; I had not been able to read enough of the papers overnight to intervene. I regret that.
  3. Given the outcome of this hearing I think that very little has been achieved from it. He oldest child, A, is in care and, by mutual agreement, does not have contact with his father, his mother or M2. There is very clear evidence that B’s mother cares for B well. She and B have lived together in a residential placement since 19th December 2014. Within the parenting assessment undertaken by the Local Authority at E106 the following is stated at E125 : ‘I do consider that B’s mother can care for him adequately in the community at this stage…[E126]…She has been unfailingly polite, patient, co operative and compliant throughout this assessment. She has responded to advice and guidance with polite interest but [we] have not been entirely convinced that she welcomed it…[E131] …there have been no concerns about her care and he is a healthy, happy baby who is thriving’. B’s mother has been assessed over a long period of time. The father, from whom she is now separated, has contact with B twice a week under supervision. The Local Authority’s position is that B’s mother has been assessed whilst in her current placement and that ‘no concerns have been raised with regards to her basic care of B’.
  4. As will be plain I have rejected most of the allegations that the Local Authority has made. Much of the Local Authority’s case rested on things that A has said against the father. In the telephone directions hearing that I held before the case started I enquired whether the Local Authority regarded A as a reliable source of evidence. I was told that it did; as the evidence (both expert and factual) shows, that was totally unrealistic. When I asked the child’s solicitor what the guardian’s assessment was of the reliability of A I was told that the guardian was away (and has remained away during this hearing) and so it was not possible to answer my question, a response that does not require further comment.

 

[Although that response does not require further comment, I must remark that there is considerable restraint being exercised there. On a case that turns largely on the reliability of A as a complainant, it is astonishing for the Guardian or those representing her not to have a view as to that reliability.]

 

The Judge was also rightly unhappy that the chronology provided was wholly inadequate. The absence of a full chronology meant that several vital questions were unanswered and could only be established by a trawl through the eight bundles of evidence.

 

  1. Chronology – As I state at the end of this judgment when I deal with matters of practice, there was no adequate chronology in this case to summarise the evidence and put matters in context. As Lady Hale observed in a case relating to another area of family law (home ownership), context is everything. For instance (and this is an abbreviated list) i) What preceded the ABE interviews? ii) When did the child make the first allegations against the father? iii) When was the firebell incident (when A says in interview the father began to abuse him physically)? iv) What sexualised behaviour did the child exhibit and when? v) What other false allegations had the child made and when? vi) What state was the child in when he came from Portugal? vii) What happened in the first set of proceedings which ended in August 2013? viii) What was A’s weight loss (see above)? ix) When did A make the first allegation against M2? x) What role did M2 play in A’s care? xi) What does the information from the school demonstrate when it is put into a schedule (I had to require production of the school / home books and the ‘SF’ file was handed in at the start of the hearing)?
  2. It has been left to me to put the evidence in order (and I say more about this at the end of the judgment). That being so I think that it is essential to put the case into its chronological perspective if any sense is to be made of it and I have done that by putting the evidence into chronological order. The result is a judgment of much greater length than I would have liked which has taken me a very long time to produce. I have typed it within the five day listing that I have had to allow for this case

 

The judicially composed chronology is excellent, and completely necessary to make proper sense of the case.  Of course, whilst it is excellent and necessary, it breaches the President’s guidance on chronologies, by first going back further than 2 years in time, and second it is far longer than the President’s mandate.

I can’t say that I’ve ever heard of a Judge having to produce their own chronology, however. That is not an activity that is likely to make him warm to the applicant’s case.

 

The Judge also felt that none of the professionals involved – either the professional clients or the lawyers had properly attempted to analyse the evidence. With eight bundles having been produced, everyone had clearly been very dilligent in identifying bits of paper that needed to be collected up and distributed, but somewhat lacking in the process of analysing where all this evidence would take the Court.

v) The advocates themselves had not seen relevant material. The papers from the previous proceedings were produced late and omitted important material, such as the threshold document from the 2013 proceedings. Nobody knew, when the case started, what had happened about the January 2013 allegations within those proceedings. There was no mention of the parenting assessment, the psychological report or the guardian’s report in the chronology. I had to call for the threshold document from those proceedings. The chronology jumps from 21/01/13 to 01/05/2013 then to 10/10/2013 and therefore somersaults over the 2013 proceedings. That is just not sensible.

vi) It was perfectly plain to me that there had been no realistic assessment of the evidence that was being placed before me by the Local Authority, upon whom the burden of proof rests. The Local Authority is the prosecuting authority and has the burden and responsibility of proving the case that it brings. There are many examples of this. A particularly obvious one is that A says that his father started to hit him after the firebell incident in July 2013 – what impact did that have on the January 2013 allegations against the father? The sexual allegations against M2 should have been put in the context of the other material, not least the similar and false allegations that A had made against others. The chronology that I have put together (which can be compared with the Local Authority chronology) speaks for itself. Huge parts of relevant and important evidence had been omitted in the Local Authority’s analysis.

vii) There has been no overview by the Local Authority or by the guardian (and I deliberately include the guardian and the child’s solicitor in this) about the reliability of the child’s evidence. That is not the fault of this child. But it does mean that before presenting a case that is so heavily dependent upon what the child has said it is of obvious importance to consider the reliability of the child as a source of evidence. I held a telephone conference hearing on the Friday before the case started and I asked for the Local Authority’s assessment of the child’s reliability. The guardian’s solicitor told me that the guardian was not available and she could not take instructions on that issue. The Local Authority counsel told me that the Local Authority viewed A as a reliable source of evidence. It was plain that there had been no proper assessment of this issue and that there had been no proper thought given to the many untrue allegations that this child had also made. That is not just unfair to the parties but it is unfair on the child whose future should not be subject to such a process.

viii) The important evidence relating to A’s weight and the condition of his feet and hands was not summarised or analysed before the case started. I created the weight chart which I extracted from the papers. Other than that the important job of seeing what the child’s weight had been had been covered by Dr GR in his report. If the point was to be made and proved it needed to be supported by evidence from the medical records. The child’s solicitor tried to cross examine on this point without any information from or reference to those records and, in doing so, sought to make a point that was wholly invalid. As to the state of A’s feet in January 2014 it was necessary for me to require an analysis of the level of pain that the child would have felt at the time that the blisters etc were developing (would it have been obvious to his carers that he was so injured?); I very nearly made a totally false assumption that the child would have been in obvious pain (as to which see Q10).

ix) Despite the abundance of evidence about the psychological difficulties that A has, there is no evidence that any consideration was given to how A should be interviewed in the light of his very specific difficulties. The questioning that I saw gave no demonstration at all of questioning being crafted by reference to those difficulties or in a way that reflected the very large amount of medical information that was available in relation to him.

x) There was a wrongful absence of enquiry into the interview that took place on 15th January 2013 [the M10 interview]. There was no recording of it or any evidence of an investigation arising from what A said in it. There is no point in me expressing my opinion about the standard of practice that those absences demonstrate because the points are too obvious.

 

 

None of the findings sought by the Local Authority (and supported by the Guardian) were made. It is therefore theoretically possible that either of them could appeal. I really wouldn’t….

 

 

 

 

The spine was white like snowflakes

No one could ever stain

But lifting all these bundles

Could only bring me pain

 

Hours go by, I’m flicking through, I’m reading J nineteen

But there’s no hint of threshold, on the pages in between

 

My blood runs wild

I can’t believe this crap they’ve filed

My blood runs cold

The chronology is not that old

Chronology is not that old

 

Na na na na na na na na na

 

(Apologies to the J-Geils band)

Crime and care

 

This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.

 

Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/334.html

 

[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.

 

  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit

 

The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.

 

But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.

 

By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]

 

But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.

 

On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

 

Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…

 

The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.

 

With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

 

[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]

 

Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

 

I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

Turning the pole vault into a limbo contest – watch Hayden J reset the bar

 
In which I applaud Hayden J for sticking both his neck out, and his finger in the dyke.
Re DM 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3119.html

Re DM was one of those cases where a Local Authority go to Court BEFORE a child is born, to say that they intend to issue care proceedings with a plan of separation at birth and that they want the Court’s permission not to tell the parent of this plan.

This peculiar application, well-described by Hayden J as “anticipated declaratory relief” emerged from the decision of our President in Re D (also Bury MBC and D) 2009 http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html

That case turned on utterly extraordinary facts.

The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.

In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.

The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.
The Local Authority in that case (Bury) were in a spot. They knew that they intended to issue care proceedings and seek removal of the child once born, and they also knew or considered that telling the mother of that in advance would jeopardise the life of the baby. They therefore took an unusual step of making an application in the High Court under the inherent jurisdiction for a declaration that NOT telling the mother of the plan would not breach their duties to her or her human rights.

The difficulty, of course, is that the mother is not told of the application and has no chance to put her own position before the Court AND of course, when the application for an EPO is made, no doubt that Court is told that in effect the High Court has already nodded approval of the plan.

In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950″. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.

When Bury/Re D was reported, most professionals thought that those circumstances would never arise again. But as I have blogged, these applications have become more common.

And I have been worried that the exceptional and dramatic circumstances of Re D have been translated into similar declarations in much less dramatic circumstances – and that they often involve cases where the mother either lacks capacity or has profound mental health problems (i.e where her vulnerabilities require even more protection from the power of the State)

I am pleased to see that Hayden J agrees with that, and says so.

This is the first reported Re D type application that has been refused, and hopefully that will staunch the flow of these.

My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam).

In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.

Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.
On the particular case in question
I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.

Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.

Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.

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