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Category Archives: assessment of risk

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.

Reversing the burden of proof – injury to a child

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

The Court Orders…”

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

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

 

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

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

 

 

 

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

 

 

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

 

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

 

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

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

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

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

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

 

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

 

 

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

 

 

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

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

 

 

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

 

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

 

 

 

Machetes, body armour and social work bashing

 

Oh, that’s a clickbait title if ever there was one. The case in question does contain all of that stuff though.
Re IMA (care proceedings :no threshold) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B110.html

This is a set of care proceedings heard in Manchester County Court, but it raises some important issues of wider importance.

It was a case in which the Local Authority obtained an Emergency Protection Order removing IMA in August 2013, and after that Interim Care Orders sanctioning IMA remaining in foster care, up until the final hearing, which took place in August 2014 a year after the initial removal.

The Local Authority had been seeking a plan of adoption, supported by the Guardian, but this had changed to permanent placement with a relative. It is of note that the plan of adoption had been supported by the Agency Decision Makers (whose job it is to assess separately to social workers whether the circumstances of an individual case mean that adoption is the right plan)

The Judge at final hearing found that the threshold criteria were not made out, and thus the child would be going home and no statutory orders would be made.

The threshold criteria was based on the risk of the child being exposed to domestic violence (which is, on the revised wording of the Children Act 1989 a matter which on its own is capable of meeting threshold). That had two aspects really (i) Was father a risk of violence or violent behaviour and (ii) was the child in mother’s care going to be exposed to the father.

The fact that the Judge found that threshold was not met therefore was significant. This wasn’t a case with a suspicious injury which on full investigation was found to be an accident or a peculiar medical condition, but rather that the child ought never really to have been removed. The Judge was not saying that the threshold HAD been met but due to changes the risks had dissipated or become manageable, but that the situation of this family had NEVER crossed the section 31 threshold.

And the Judge had advised the Local Authority in a number of hearings that he was concerned that the section 31 threshold was not made out on the evidence that they had presented and was giving them the opportunity to flesh out their evidence if they had more information which was not before the Court. He told them that on 17th February 2014, 14th April 2014 and 23rd June, before making it official at the final hearing by ruling that threshold was not met.
The Judge starts off scathing and continues in that vein

These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old.
The Court did say that the LA were not wrong to have brought the case, but hints strongly that they were wrong not to have taken stock after any of those hearings where the Court indicated that they considered satisfying s31 threshold to be an issue.

133. There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children’s Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.

A major part of the Local Authority’s case was that the father’s convictions established that first part of their threshold – that he presented a risk. [In large part, that was because there was no evidence of any domestic violence in the relationship between mother and father – no injuries, no police call outs, no referrals from neighbours, no allegations from either of them] They were relying on two things – firstly the father’s convictions and secondly the history of domestic violence in his previous relationship
The Judge took a very different view as to whether the criminal convictions in themselves established that father was a risk. A major part of that was that offences which looked on paper very serious received such light sentences that the Judge (who sits as a criminal Judge) brought his experience to bear in saying that one had to treat the offences on paper in the light of the very light sentences – they cannot have been at the high end of the spectrum of those offences.
51. In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that.

52. The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the ‘threshold criteria’ it contends for.
By the time of the final hearing, the Local Authority’s threshold document was as follows (I commend the Judge for including it in full, it is extremely helpful when this is done, as one can then see the basis on which the case is put)

MAA is the father, JG the mother.
142 “The nature of the likelihood of harm alleged is expressed as “(i) Impairment to the child’s physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child’s physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-

(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA’s birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim’s legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS

(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children’s Services to remove her children from her
(4) She was so frightened that she moved into a women’s refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA’s ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been “terrified” by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children’s Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents’ home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG’s refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA’s safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children’s Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.

(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA’s birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
Whilst that looks, on the face of it like a pretty decent threshold to establish that MAA (the father) posed a risk of harm -there’s a recent offence, offences including weapons, violent and controlling behaviour towards a former partner and that being recent, we already know that threshold was not found. So we need to see why.

The Judge deals with those matters in the following way (that is, in short, to reject all of them as being made out)

143. In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –
(1) The father’s convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father’s character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children’s Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.

(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
If you are keeping count, the Judge struck out every paragraph of the Local Authority’s final threshold document. The whole lot, gone.

(The Local Authority did not appeal this decision. I think that they COULD have done on points 3, 4 and 5 – these are surely ‘risks that cannot sensibly be ignored’ and they go to the heart of ‘is the father a risk of domestic violence’)

I have reviewed the evidence in this case and have borne in mind all the guidance for the Supreme Court set out above in arriving at my conclusion which is that I do not find the ‘threshold criteria’ established for the purposes of section 31.
I am acutely aware of the consequences of any finding that the ‘threshold criteria’ is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the ‘threshold criteria’ is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.
The Judge did identify that there were issues and concerns, but that these fell short of satisfying the threshold

47. Both the local authority and the children’s guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children’s guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother’s lack of honesty on occasions or the lies she admits to having told do not denote harm.

48. The social worker and the children’s guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.

 

The Judge was very critical of the written and oral evidence of both the social worker and the Guardian

 

61. [The social worker] gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident.

69. He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. [The social worker’s] response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.

155. I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.

156. I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.

157. There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned.
The social worker’s manager also takes some flak

158. I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.
And in relation to the Guardian

106. The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that
“the father in my view presents serious risk to IMA”.
107. However, he later goes on to say at E39

“In view of the father’s lack of engagement in the local authority’s assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother’s care……. I share the local authority’s view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings”.

108. His report proliferates with references to the risk the father presents to IMA as being “unassessed”.

113. At paragraphs 106 to 114 of his report the guardian purports to address the ‘threshold criteria’ and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father’s circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father

114. At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that

“there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment”

appears to lack any factual basis evidenced in the information available to the court to satisfy the ‘threshold criteria’ at the time the local authority implemented it protective measures for the child.
[The scattering of the  ‘unassessed risk’ phrase is quite reminiscent of the case that Ryder LJ recently granted permission to appeal on - Ryder LJ's remark there was "We are ALL unassessed risks". Is there an issue with professionals confusing absence of an assessment due to non-engagement with evidence of risk?]
The Judge was also very critical of the ‘chinese whispers’ and assertions being repeated and reported as fact, particularly around the police intelligence
150. There are real issues in this case about the Children’s Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children’s Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.

151. Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.

 

Epilepsy and rib fractures

 

 

This is a County Court decision on a finding of fact hearing, involving a child of two Brazilian parents who sustained a rib fracture.

Because I am childish, I like to think that the Judge specifically named the case Re O because of the Brazilian connection…

Re O (Minors) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B44.html

The case threw up a number of important issues. The parents defence had been that they had not done anything and that there had been a Vitamin D deficiency, leading to rickets, leading to weak bones. A substantial amount of expert evidence was called on this, and eventually it went nowhere.

The mother, who had been caring for the child L, during the relevant period, is someone who has epilepsy. She gave evidence about whether she had had a fit on that day
As to her epilepsy the mother said that she had five such fits during her pregnancy with F and two during her pregnancy with L. She could recall no fits between F’s birth and her pregnancy with L. Although she does not remember having such fits she usually begins to feel unwell shortly beforehand. Following a fit she feels drowsy, unwell and everything seems muddled. She did not recall any such symptoms occurring on 7th April 2013.
With that in mind, you may be surprised that the finding of His Honour Judge Bond was that the injury was caused during an epileptic seizure. I think, to be fair, that everyone else was surprised as well, and this emerged as a result of some expert evidence from a Dr Hillier
121 Attempts had been made before and during the hearing to secure the attendance of Dr. Hillier. He is a Consultant in Neurology. Unfortunately he did not give evidence until after the parents. He was the last witness to give evidence.

122. The mother’s G.P. had first referred her to Dr. Hillier in 2009. He has written a short report dated 30th September 2013 (C2199) about the mother’s possible epilepsy. He last saw the mother in November 2012. Dr Hillier found it difficult to make a clear diagnosis but thought that the mother suffered from faints which look like seizures, but perhaps has a tendency to fainting and to suffering seizures.

123. In his oral evidence Dr. Hillier went further and took everybody by surprise. He distinguished between what he described as partial epileptic fits and full epileptic fits. In his opinion it was possible that the mother could have had a partial fit, during which she injured L, but remembered nothing of it. Further he thought it possible that the mother would experience no symptoms, before or after a partial fit, that would lead her to remember that she had suffered such a fit.

124. The doctor described situations where a patient had attended his clinic and reported that he had suffered no fits since the last appointment. Not infrequently, the patient’s partner reported that he/she had observed occasions when the patient was “spaced out”, having had some form of partial fit, but which the patient could not remember.

125. It was because of this evidence that the local authority reconsidered its position and no longer sought any public law orders.
The very vivid illustration given by Dr Hillier was that he had once had a patient who had been peeling an orange, had had a partial fit, and continued peeling the orange afterwards, and that for this patient there had been no gap at all in the sequence of events, she had simply peeled an orange and nothing of any significance had occurred at all.

The suggestion therefore was that mother could have had a partial fit, injured the child completely accidentally during it and been utterly unaware of it.

The Local Authority, in the light of that evidence, threw the towel in (save for shutting the door on all of the Vitamin D debate in relation to this case)

That suggestion that a parent could injure their child during a partial fit and have NO RECOLLECTION of it at all is startling, but Dr Hillier’s evidence was clearly compelling.
The Judge had to consider whether this was capable of meeting the section 31 threshold in any event (for example was there some negligence or fault or flaw in the mother handling a child when she was prone to fits?)
In paragraph 8 of his written submissions, Mr Hand [counsel for the LA] deals with the question of whether the threshold criteria are satisfied. He referred to the case of Re D (Care Order: Evidence) [2011] 1 FLR 447 per Hughes LJ that the test under Section 31(2) of the Children Act is an objective one. As the Lord Justice said in that case:

“It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best.”

145. Mr Hand submits, and I agree, that on the facts of this case, if the court finds L’s injuries were caused by the mother during a partial fit, the threshold criteria are not met by reason of the fractures that L suffered. Mr Hand said that, had the Local Authority been aware, at the outset, of Dr Hillier’s evidence, they would not have instituted proceedings under Section 31.
[i.e so far as the LA were concerned, although it was theoretically possible for the Court to find that the s31 threshold was crossed by the child being injured whilst being held by mother who had a partial fit that she had no recollection of, they were not going to invite the Court to do so]
The next interesting point to arise is that clearly once the LA accepted the partial fit theory, and the mother and father accepted it, was it a done deal? In this case, those representing the Guardian felt uncomfortable about that.

168. Mr Tolson QC [counsel for the Guardian] submits, and I agree, that the medical evidence did not alter during the course of the hearing. The three jointly instructed experts agreed substantially, as did Dr Allgrove. The thrust of the evidence was that non-accidental injury is the only explanation, save in wholly exceptional medical circumstances which it is submitted do not exist in this case. It is submitted that the parents’ evidence was not credible and in this case the matter goes further than simply being unable to offer an explanation. It is submitted on behalf of the guardian that the omission of any recall prior to the observation of the lump is particularly striking given the obvious thoroughness with which the parent’s statements have been prepared in other respects. Further submits Mr Tolson QC it is clear that the parents were tired and under some stress on Sunday 7th April 2013.

169. In his oral submissions Mr Tolson QC accepted that he was now the only advocate who contended for a finding of non-accidental injury. Following Dr Hillier’s evidence, Mr Tolson QC had been able to take brief instructions about the Local Authority’s change of position. The guardian maintained her position, as I have just described.

170. Mr Tolson QC dealt with the point raised by Charles J in Lancashire CC v D & E, in respect of the guardian’s position in a case such as this. In the particular circumstances of this case, and particularly since the Local Authority’s change of position, the guardian felt it important that the court should have before it, on behalf of the children, arguments which supported a finding of inflicted non-accidental injury.

171. It is the case that the role of the guardian’s advocate in a fact-finding exercise is to be fully involved in testing, in particular the expert evidence. Generally I would expect the guardian to help the court by making submissions which alert the court to the important matters, but to remain neutral as to the court’s findings. In the unusual circumstances of this case, it was helpful for the guardian to maintain the position that she did, although I regard it as an exceptional course.
The Court therefore permitted the Guardian’s advocate to ‘test the evidence’ and to make submissions that the partial fit explanation might not be the correct answer in this case. (It would perhaps have been interesting to see if the Court would have taken a different view had the key piece of evidence, Dr Hillier, not been the very last witness in the case)

Here is what the Guardian (through leading counsel) had to say about the partial fit theory
172. As to the question of the burden of proof, and given that the Local Authority no longer pursued a finding of inflicted non-accidental injury, Mr Tolson QC pointed out that the court must still, in the circumstances of this case, consider whether such a case has been proved on the balance of probabilities.

173. As to the question of the mother’s epilepsy, Mr Tolson QC pointed out that there was no evidence that the mother had had a fit on the day in question. Further, there was no evidence that the mother had ever had a partial fit of a kind which Dr Hillier thought might have been possible. Mr Tolson QC did not accept that Dr Hillier’s evidence necessarily meant that during a partial fit the mother would drop L and not remember such an event. He submitted that a partial fit would not fill the gap to explain the vagaries of the mother’s evidence, in respect of what happened between about 13.00 and 18.00 on 7th April 2013. It is accepted, on behalf of the guardian, that if the mother had had a full epileptic seizure she might not recall dropping L.

174. Mr Tolson QC submitted that an epileptic fit does not explain L’s rib injuries. For example if L had been dropped that would not involve a squeezing mechanism, which is generally thought to be the cause of a type of rib fracture that L had suffered. Further, said Mr Tolson QC, one such fit would not explain the presence of the bruises.

The Judge said that before having heard from Dr Hillier, he had reached the tentative conclusion that he was satisfied that the injuries had occurred but was not satisfied that they had been deliberately caused by either of the parent, their overall presentation and absence of any other troubling issues weighing significantly in these deliberations.
The applications for Care Orders were dismissed and the children returned home.  [It is worth noting that the Judge indicated that even before Dr Hillier's evidence, he had been of the view that he should not make a finding of fact that either of the parents had deliberately harmed the child]

 

The Judge had this to say about epilepsy

184. The question of epilepsy and its possible implications in cases such as this has been explored. There is clearly much to learn.

 

Intervening lodger

 

 

Intervening lodger

 

 

 

The Court of Appeal decision in Re H (a Child) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/232.html

 

This case was effectively an appeal of findings of fact made against A, a young man living in the grandmother’s home.  [He might not be a lodger, but the judgment doesn’t say that he is a relative or partner, and I have used a process of deduction]

 

Care Orders and Placement Orders were made in the case, and the only realistic options in the case were those orders or a plan of mother and the children living in grandmother’s home, where A would continue to live.

 

The issue about that was that there were allegations of A having sexually abused children, and the professional opinion was that the mother and children could live with grandmother IF those allegations proved to be false, but not if they were proved to be true.

 

The Court of Appeal say “There was no question that A could or should move out of that household”     – I’m not quite sure why not, but there it is.

 

The preliminary question was A’s ability to appeal the decision – the Court of Appeal don’t actually consider appeals against findings of fact, but rather ORDERS arising from those findings of fact   (that, as Shakespeare put it, is a custom more honoured in the breach than the observance, but every once in a while the Court of Appeal remembers that)

 

There’s no simple answer to whether A could appeal against those conclusions, since he would not have standing to appeal the ORDER, but in the event this thorny problem was sidestepped as the grandmother was given public funding to run the appeal, and SHE of course could appeal the ORDER.

 

The order of course flows from those adverse findings.  

 

My reading of the case is that the lead Judge had some sympathy with the way that Leading Counsel representing the grandmother (and A) looked at the ABE interviews.

 

11.That theme which necessarily dominates this application was that the one option before the judge was for adoption of B with the maternal grandmother. There was no question that A could or should move out of that household. In attractive submissions, Mr Feehan took the Court through the transcripts of the DVD records of the ABE interviews of each of the three cousins and highlighted the flaws in those records which he submitted are sufficient to render the content unreliable. If he is right, then the judge was wrong to place reliance on any part of the same and the findings of fact would then be unsafe.

12To understand the context of that submission, one has to be conversant with the 2007 guidance “Achieving Best Evidence in Criminal Proceedings”, which is the multi agency best practice guidance that makes strong recommendations to those presenting the evidence of children to courts, both family and criminal alike.

13There is then a series of decisions of this court that highlight how a failure to follow that guidance can lead to fatal contamination of the children’s evidence. Mr Feehan took this court in particular to TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children’s materials that no reliance could be placed on the same. Mr Feehan highlighted the significant similarities between this appeal and Re: TW and invited this court to come to the same conclusion.

14In addition, he highlighted a line of authority on the demeanour of witnesses which caution the Court in deciding credibility issues in its reliance on demeanour alone. The point is obvious. What is the circumstantial material and does it tend to suggest credibility and reliability, or not, as the case may be?

 

 

In passing, I will raise my concern about the quality of ABE interviews, and particularly something which troubles me greatly, the development recently of “Q and A” sessions as a prelude to doing an ABE interview, almost as a sifting process to see if the child is going to make allegations in ABE. That seems to me to entirely miss the point of an ABE interview, which is to ensure that one sees exactly what the child is asked and is able to see whether the allegations emerge naturally from the child or whether they might have emerged by way of careless or inadvertent suggestion by the questioner. I am not sure that the ABE guidance is followed properly throughout the country, and it can cause significant problems either way (either a child’s allegations being contaminated and over-stated leading to a person wrongly being determined to be an abuser, or a genuine account having been contaminated leading to a finding that it is not safe to rely on what the child says)

 

 

15In deconstructing each of the interviews of the three cousins, Mr Feehan has identified varying significant failures. I can summarise them in headline form, but it is important to understand that he took the Court to the detail in the interviews themselves to substantiate his submissions.

a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.

b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys’ family circumstances, including the house in which it was said the abuse occurred.

c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:

(i) no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.

(ii) no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.

(iii)no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.

(iv) seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.

(v) a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.

(vi) inaccurate rehearsal or summarising of what the boys had said in interview.

16Mr. Feehan was also able to point to the fact that these boys had never repeated the allegations in any other environment or since interview, despite one of them being engaged in some significant therapeutic work. Finally in the context of the proceedings, A was described favourably by the judge, despite some of his evidence being found to be unreliable

 

 

That does appear to be a significantly flawed ABE interview – the issue for the Court is whether, taking careful account of the flaws the Judge was able to still have confidence in the core truth of the allegations, or whether the ABE was so flawed that no reliance could safely be placed on anything that was said within it.

 

17The failings in the ABE interview process are very troubling, but no doubt with the same clarity with which Mr Feehan has addressed this Court they were put to Peter Jackson J who analysed those failings with some care. The judge likewise considered the position of the pre-interview discussions with the relatives. It should be remembered in that regard that the judge heard all of the adults who were also made available for cross-examination.

18Given the failings which were apparent, the judge entered into the task of highlighting the most worrying elements of the allegations made by the boys in their interviews. He did so at paragraph 49 of his judgment. The passages relied on include the graphic use of language by one particular boy who was the youngest about his experience of what happened. The judge found that material to be cogent despite the serious failings of the interview process. In essence, the judge was able to be satisfied that there was a core of truth in what had been described in the interviews.

19 That is a position to which a judge is entitled to come unless the whole of the interview process is so flawed that there is nothing reliable that emerges at the end of the same. Having regard to the way the judge set out at paragraph 49 what he relied upon, his impression of that boy’s evidence is something that it would be very difficult, if not impossible, for this court to undermine. Furthermore, there was nothing in the conduct of the adult relatives which led the judge to conclude that the boys had been coached or contaminated in their discussions with them

 

The remark at para 17 that shows that the trial judge had been very alive to the failings of the ABE interviews and had analysed it carefully was what sank this appeal. The Court of Appeal did not feel that the trial judge had got this wrong.

 

20 At paragraph 63 of the judgment, the judge carefully discusses the evidence from the family about their circumstances, the effect of the flawed interviews and that part of the interview process that led him to identify the cogent material upon which he relied. Finally, he considers the position of the boys and the adults and reminds himself that it was not for A to prove anything in the proceedings before him.

  1. Insofar as there is a submission that a judge hearing evidence from a witness is entitled to disagree with the content of the same and might thereby come to a conclusion which is not otherwise proved by the local authority, I do not consider that to be a reversal of a burden of proof, as submitted by Mr Feehan. It is a part of binary fact finding in a quasi inquisitorial process where the judge has considered what findings he can or cannot come to. At paragraph 63, the judge puts his finding into context and describes and explains why it is he found the younger cousins to be reliable enough. At paragraph 64 of his judgment, he sets out the findings that he makes. In my judgment, the judge was not wrong in the exercise that he undertook.

 

 

The Court of Appeal were unhappy about one finding

 

  1. If I take issue with anything at all, it is in respect of one part of one sentence at paragraph 64 of his judgment where the judge summarises what has gone before and says:

“He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration.”

  1. The clause: “it is not clear whether there was any significant penetration” must, as a matter of law, read “I make no finding on the evidence that there was penetration” and accordingly there was no finding on that issue at all. That phrase should not have found its way into the schedule of findings that presently appears in the order, and to that extent the order should be corrected.

The Ofsted, and Action for Children research on neglect

You may have heard that Ofsted this week published some research on neglect, the over-arching theme being that some children are being left in neglectful situations for too long

 

http://www.ofsted.gov.uk/resources/childs-time-professional-responses-neglect

 

On the same day, Action for Children published their research into neglect

“Child Neglect : The Scandal that never breaks”

 

http://www.actionforchildren.org.uk/media/8678803/scandal2014.pdf

 

the over-arching theme there being that neglect is happening to far more children than you might expect – their headline figures being

 

73% of UK children know another child who is suffering from neglect. Urgent action is needed to help children and families get the help they need.

 

  • Since 2011, around a third (32% in 2013) of professionals have felt powerless to intervene when they have concerns about child neglect
  • 35% of professionals say Government spending cuts have made it more difficult to intervene in cases of child neglect. In particular, 65% of social workers said cuts impeded their ability to intervene in cases
  • 94% of the public agree people should do something when they are worried about a child but 45% want more information on where to get help

 

Of course, the big headline really depends on (a) how you define the term neglect and (b) whether you think children are the best people to identify neglect in other children that they know

 

Their major demand, that the Government ought to produce a national coherent strategy on child neglect, is a worthwhile one. Perhaps the one two punch of Ofsted and Action for Children saying similar things on the same day will have an impact. (I suspect that Ofsted have much more clout, because they don’t need to scare Government into action, they just have to scare Local Authorities that if they don’t have a Neglect Policy, they’ll get a bad Ofsted review)

 

There’s a bit in the Action for Children research that made me scratch my head. The researchers asked professionals what the barriers were that stopped them intervening on child neglect.

 

 

There are the usual suspects – lack of resources, gaps in services, the point at which intervention can take place being too high. But then there’s “It’s not my job to intervene”

 

10% of the social workers asked gave that as their answer. 10%….

 

That is very worrying to me. It’s at page 18 if you don’t believe me

 

 

The Ofsted research then. They looked at 124 cases, drawn from eleven local authorities. Those local authorities were a spread of inner-city and rural counties, from the North, the South, the East and the West   (though the heaviest proportion was the North West – Liverpool, Manchester, Lancashire, Wigan). They looked at the records, spoke to professionals, to children, to parents and to carers.

 The key findings :-

 

      The quality of professional practice in cases of neglect overall was found to be too variable, although in some of the cases examined at this inspection, children were making progress.

      Nearly half of assessments in the cases seen either did not take sufficient account of the family history, or did not adequately convey or consider the impact of neglect on the child. Some assessments focused almost exclusively on the parents’ needs rather than analysing the impact of adult behaviours on children.In a small number of cases this delayed the action local agencies took to protect children from suffering further harm.

      While the quality of written plans was found to be too variable, there was evidence of some very good support for children that was meeting the short-term needs of the family. However, there was very little evidence of longer-term support being provided to enable sustained change in the care given to the children.

      Some authorities are using effective methods to map and measure the impact of neglect on children over time and to evaluate the effectiveness of interventions. This results in timely and improved decision-making in some cases. However, not all local authorities have such systems in place to support social workers in monitoring the impact of neglect on children and the effectiveness of their interventions.

      Non-compliance and disguised compliance by parents were common features in cases reviewed. Although some multi-agency groups adopted clear strategies to manage such behaviour, this was not evident in all cases. Where parents were not engaging with plans, and outcomes for children were not improving, professionals did not consistently challenge parents.

      Drift was identified at some stage in the child’s journey in a third of all long-term cases examined, delaying appropriate action to meet the needs of children and to protect them from further harm. Drift was caused by a range of factors, including inadequate assessments, poor planning, parents failing to engage and in a small number of cases, lack of understanding by professionals of the cumulative impact of neglect on children’s health and development. Drift and delay have serious consequences for children, resulting in them continuing to be exposed to neglect.

      Front-line social workers and managers have access to research findings in relation to neglect, although the extent to which this is incorporated into practice varies. It is by exception that front-line social workers use specific research to support their work. The impact of training on professional practice with regard to neglect is neither systematically evident nor routinely evaluated.

      Routine performance monitoring and reporting arrangements to LSCBs infrequently profile neglect. Therefore most boards do not receive or collect neglect data except in respect of the number of child protection plans where the category is recorded as neglect. Most boards were not able to provide robust evidence of their evaluation and challenge about the effectiveness of multi-agency working to tackle neglect.

      Those local authorities providing the strongest evidence of the most comprehensive action to tackle neglect were more likely to have a neglect strategy and/or a systematic improvement programme across policy and practice, involving the development of specific approaches to neglect.

      The challenge for local authorities and their partners is to ensure that best practice in cases of neglect is shared in order to drive improvement.

 

 

They make a series of recommendations for Government (to review social work training to have mandatory material on neglect, to require Local Safeguarding Children’s Boards to have a strategy on neglect for their local area) ,

for Local Safeguarding Children’s Boards (to gather data on neglect and assess and monitor it in their area, to ensure front-line training on neglect for professionals, to get agencies working together on the issues, to ensure that all staff know how to escalate concerns, to ensure that all training represents best practice and contemporary research)

and on Local Authorities (robust management oversight of neglect cases to avoid drift, better methods of assessment, proper child protection plans for neglect cases, specialist training in neglect, consistent levels of threshold for intervention, a shift in focus on written evidence presented to Courts so that it is clear, concise and explicitly describes the cumulative impact of neglect on the daily life of the child)

 

The last is interesting, as we brace ourselves for the standardised model of social work reports (having seen the version that went out to consultation, I have serious doubts that this model is going to deliver what Ofsted are recommending)

 

The body of the report picks up as a theme that social work reports and assessments focused on the adults and the parents issues rather than analysis of the impact of this on the children. “Are children getting lost in the assessment in the same way in which they are lost within their own families?”

 and a later quotation  (from a Director of Children’s Services)

“social workers and schools may become desensitised to neglect”

 

 

The headline that was grabbed by the Press (they toss a coin, I think, to decide on any individual day whether social workers are jackbooted child-snatching fascists, or clueless Mavis-Reilly-esque do-gooders who are hopelessly ineffectual)   was that parents were given too many chances

 

66. In the cohort of cases where progress for children was not being achieved, a common feature was parental non-compliance or ‘disguised compliance’. Professionals did not consistently demonstrate clear strategies to manage this behaviour. For example in a small number of cases, the Public Law Outline (PLO) was used to address non-compliance and while this was effective in the majority of cases, where parents breached PLO agreements subsequent action was not always taken. This apparent reluctance by professionals to act assertively and in line with written agreements meant that cases were not escalated at the right time for children and there was a delay in action to protect them.

67. In some of the multi-agency meetings held during the thematic inspection professionals reflected on their practice and accepted, with hindsight, that they had been manipulated by parents. For example, in one case when a mother and father had a new baby, the child was made subject to a child protection plan because the parents both had a history of drug misuse and had had previous children removed due to neglect. When the mother tested positive for cocaine use and the father positive for heroin use, the case was escalated to PLO, but stepped down again very quickly when the parents appeared to cooperate with the plan. The child was removed from the parents some months later due to further evidence of parental drug misuse. The child protection chair told the inspector that they should have been more challenging of the lack of progress at a much earlier stage in the case, and described the parents as ‘very plausible’, ‘always coming up with a reason for not completing tasks that were required of them’.

68. In other cases parents were given too many chances because professionals had not fully recognised or assessed the level of non-compliance and were carrying on regardless. Overall, the evidence in these longer-term cases is of a failure by professionals and their managers to be consistent in identifying non-compliance and disguised compliance, and in some cases failing to assertively challenge parents who were not engaging with plans.

 

For local authority lawyers, Ofsted makes comments about their role in the process too (not particularly flattering comments)

 

74 . Further delays were apparent in some cases because of inconsistency in decisions about whether the threshold for proceedings had been met. A small minority of local authority legal advisers held the view that some courts were not giving enough consideration to the family history when making decisions as to whether the threshold for proceedings had been met. However, most legal advisers reported that the courts and Cafcass were well-informed about research findings and the significance of a history of parental neglect. In a further small minority of cases local authorities appeared too ready to accept legal advice that the threshold for proceedings had not been met. This suggests there was some lack of clarity as to who holds responsibility for making decisions to initiate court proceedings to protect children from significant harm.

75. The general view of legal representatives was that the quality of written and verbal evidence provided by childcare professionals in legal proceedings was not consistently robust. This resulted in some cases failing to progress to proceedings or, when cases did reach the court arena, not achieving the required outcome. Evidence needed to be gathered more effectively, risks and protective factors expressed more clearly, and the impact or potential impact of neglect on children identified. Partner agencies needed to collate evidence of the impact of neglect, including the impact on children’s behaviour and emotional development, from a very early stage.On the basis of this thematic inspection the lack of clarity around thresholds for legal proceedings is a signficiant concern, given that as a result of this some children remain in situations of neglect for too long

 

Of course, one of the issues on ‘threshold’ is that we are talking about two different things – the s38 or s31 ‘threshold’ of significant harm is very easy to identify, we all know that when we see it. But the ‘threshold’ of “If you go to Court and ask for these children to be removed will you succeed?”   is much more dependent on local Courts, local Guardians, knowing how your Courts view neglect, knowing how bad it has to be before you would meet that test, knowing whether your social worker’s evidence will be compelling in the witness box or tentative. How old are the children, how will they be affected, are you going to find foster placements to meet their needs? Of course the answer to the second question varies greatly from case to case, there is never a one-size fits all answer.

It is, of course, very important not to conflate the two questions

 

  1. Is the threshold met
  2. Is the evidence strong enough to persuade a Court to do anything about it

 

 

Neglect is always the hardest type of case to make decisions about – almost always you have missed the right time to issue the proceedings. Neglect is very rarely a steady downward slope, it is more of an undulation, a series of peaks and troughs – little improvements as support is provided, dips as the family struggles. And it always feels that the impact on the children of neglect is viewed less significantly by Courts than a broken leg, an allegation of sexual abuse. Even though the long-term impact of neglect can be very corrosive, there’s a feeling that it isn’t that bad, or that it has to get very bad indeed before anyone is willing to draw a line and say “no more”

As local authorities come under pressure to drop their numbers of looked after children (and they are doing, and a large part of that pressure is from Ofsted themselves), neglect represents the soft target for that reduction.

 

Not many local authorities are going to increase their tolerance for physical abuse at home, or sexual abuse at home. Which leaves, if you want to raise your threshold and lower your number of court proceedings and looked after children, tolerating more neglect at home.

Unless you’re going to put in services and support to change neglectful care into good enough care, but that’s a big ask at a time of cuts and reduction in services.

 

[It might, of course, be a good thing that there’s a recalibration of what is ‘good enough’ care where the State should support but not intervene, and what requires care proceedings and separation – one can’t argue with the fact that the number of children coming into court proceedings has gone up massively over the last ten years, and how do we know whether we are now at the right number and we used to be leaving too many children at home, or whether we were right ten years ago and over-reacting now?  ]

Obtaining a fresh assessment late in proceedings

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 ['the Regulations']. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child's] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

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