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Legal aid for section 51 applications – contact post adoption

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.

Applying for contact AFTER a child is adopted

The family law provisions of the new Children and Families Act 2014 come into force on 22nd April.

The Act itself (as opposed to press releases boasting about how it will solve everything, give us free energy, a perpetual motion machine and bring peace and harmony to both the Middle East and the pro and anti-Europe wings of the Tory party) can be found here

http://www.legislation.gov.uk/ukpga/2014/6/pdfs/ukpga_20140006_en.pdf

There’s a LOT of it, so am going to try to tackle it in chunks. Today’s topic is going to be the new section 51A of the Adoption and Children Act 2002, which makes provision for applications for contact AFTER an adoption order has been made.

Historically, Courts have been able to consider applications for the contact that a parent would have POST-ADOPTION, but that application and determination of it would have been BEFORE the adoption order was made. Thus, the adoption order would in effect be the last time the child would be the subject of litigation, and the Court’s involvement in their life would end.  (There are exceptions – as we saw in Re W the President was willing to overturn an adoption order to hear an appeal, there are adopters who end up being involved in subsequent care or private law proceedings themselves, but generally, once the adoption order itself was made, the Court were done with the child)

So, what about post 22nd April? Well, s9 of the Children and Families Act 2014 says this :-  [bold bits are mine, for emphasis]  – and it is important to note that this doesn’t just apply to adoption orders made after 22nd April, it applies to ALL adoption orders

9 Contact: post-adoption

(1) After section 51 of the Adoption and Children Act 2002 insert—

“Post-adoption contact

51A Post-adoption contact

(1) This section applies where—

(a) an adoption agency has placed or was authorised to place a child for adoption, and

(b) the court is making or has made an adoption order in respect of the child.

(2) When making the adoption order or at any time afterwards, the court may make an order under this section—

(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b) prohibiting the person named in the order under this section from having contact with the child

(3) The following people may be name d in an order under this section—

(a) any person who (but for the child’s adoption) would be related to the child by blood (including

half-blood), marriage or civilpartnership;

(b) any former guardian of the child;

(c) any person who had parental responsibility for the child immediately before the making of the adoption order;

(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with

children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e) any person with whom the child has lived for a period of at least one year.        [This has a cut-off of not applying if it was more than 5 years ago, but seems to me that it would potentially cover relatives who cared for the child, foster carers, and possibly siblings]

(4) An application for an order under this section may be made by—

(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b) the child, or

(c) any person who has obtained the court’s leave to make the application.

(5) In deciding whether to grant leave under subsection (4)(c), the court

must consider—

(a) any risk there might be of the proposed application disrupting

the child’s life to such an extent that he or she would be harmed

by it (within the meaning of the 1989 Act),

(b) the applicant’s connetion with the child, and

(c) any representations made to the court by—

(i) the child, or

(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made

Obviously, there’s a lot there, and it is written in Law not English.

The nub of it is, a birth parent, or someone with whom the child has lived for at least a year, can apply for an order for contact with that child, including staying contact, and the application can be made AFTER the adoption order is made.  They will need Leave of the Court to make that application – i.e there is a two stage test – can you persuade a Court to give you permission to make an application for contact, and then the Court deciding whether your application succeeds and you GET contact.

Leave applications are tricky – if you imagine that there’s a high jump bar, and that the parent will get leave if they can jump over it, and won’t get leave if they can’t, that’s a helpful way to look at it. The problem is, making sure that everyone knows exactly how high that bar is set and that a Judge doesn’t end up setting it too high, or too low. (That has been the subject of much of 2013s  law developments, with the Court of Appeal concluding that the bar on leave to oppose adoptions has been set too high for parents and needs to be adjusted to make it a fair test)

This test is contained in s51(5) which says that the Court MUST consider whether granting permission might disrupt the child’s life to such an extent that they would be harmed by it  (note that this is NOT whether contact would cause that harm, but allowing the ARGUMENT about contact would cause that harm). The wording here is strange, in that the reference to ‘harm’ then says in the meaning given in the Children Act 1989.  Does that therefore mean ‘significant harm’?

The Court MUST also consider the applicant’s connection with the child, and any views expressed by the child or the adopters.

You would have to say, in light of Re B-S, Re W et al of 2013, it is at best uncertain as to how any application for leave under s51 to apply for a contact order post adoption order being made would go. What we DO know is that the application would have to be served on the adopters (presumably via the Local Authority, as the parents won’t know the adopters address), and they would be represented in the leave argument hearing.

We don’t know whether public funding would cover a parent making a s51 application – it certainly isn’t automatic, which puts the parents in the hands of the generous discretion of the Legal Aid agency in making that decision. The adopters won’t automatically get legal aid to fund their legal costs either, even if they financially qualify.  That probably leaves the adopters going cap in hand to the Local Authority asking for help with legal fees, or paying out of their own pocket, or trying to represent themselves  (I honestly can’t see how the latter would work, particularly if the parent is representing themselves too)

In reality, a leave application can need the filing of evidence and a few hearings before the fight itself can take place. Note that in this leave requirement (unlike revocation of an SGO or Placement Order or leave to oppose adoption) there’s no requirement on the parent to show change or significant change since the order was made – they can just say that they want to have contact with their child.

The leave application can be a worrying and anxious time. It can potentially unsettle the child.

So my question really is

For a birth parent – is this a power that is potentially going to end up in you being able to get contact with your child post adoption, in which case it would be a good thing for you, or is it a ‘fake’ potential avenue that is actually a dead end just putting you through stress and optimism and then disappointment as each and every application for leave is refused? If it is the latter, why even put it in the Act?

For adopters – how does having this provision, knowing that you could be drawn into court proceedings and having to file statements and have arguments in court about contact, after the adoption order was made, make you feel?  And again, are they applications that have a chance of being made, or are you going through stress and anxiety for nothing?

Unless you are actually going to make s51 contact orders on parents applications after the adoption orders being made, it seems to me to just cause emotional pain to the parents because of false hope, and emotional pain and anxiety to adopters as they go through the process.  Does that then suggest that Parliament envisages that in some cases (not just the exceptionally rare ones) parents will succeed in these applications and get their contact?  And how will that change the character of adoption?

And in a final round-up, what prevents a parent who fails to get leave under s51 making another application next year, or the year after, or the year after that? They may never get their s51 leave, but they could hope to make life awkward and difficult for the adopters, maybe get the adopters worn down to offer a compromise or agree the contact sought.

Well, what “stops” this sort of hopeless, frivolous or vexatious litigation in the Children Act 1989  (and ‘stops’ is a bit strong) is section 91(14) of the Children Act 1989, which gives the Court the power to say to a person who is making those applications, you can’t make them any more – or not without leave of the Court anyway

s91 (14)On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.

Two problems with this

1. s91(14) applies to orders or applications made under the Children Act, whereas a s51 application is made under the Adoption and Children Act 2002 – there’s no provision similar to s91(14) under the Adoption and Children Act  (why would there be? Up until now, all applications ended once the adoption order was made)

2. Even if it did, all it does is turn the 2 stage test?  (May I make the application, can I have contact?) into a 3 stage test (may I ask whether I may make the application, may I make the application, can I have contact?)   And stage 1 still involves the adopters being notified, and having to come to court and fight the first stage, so really, what difference does it make?

So, to stop s51 applications being rained down on the adopters, the only real mechanism is to apply to the High Court to have the applicant declared as a vexatious litigant.  That forbids them from making any Court application without permission of the High Court   (so, we are back to the 3 stage test, with the problems already discussed)

[if you are interested further in the concept of vexatious litigants, this is a good speech on the topic, which gives the history and some projections for the future  http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006 ]

You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents. It has effectively two strands  – if the contact is agreed don’t make an order, and if the adopters don’t agree the contact there would need to be very compelling reasons to impose it on them.  (Are those guidelines dead in the water now that s51 is upon us? Is there genuinely a different ethos in Parliaments, and thus the laws view on making contact orders against adopters? We’ll have to wait and see how the Court of Appeal views this)    .

 
 
ADDENDUM EDIT
 
 
I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.
 
But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)
 
For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.
 
For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.
 
As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.

 
 

“Man of Straw and costs”

Making a costs order in private law proceedings against a man with no ability to pay – the Court of Appeal decision in Re G (Children) 2013

http://familylawhub.co.uk/default.aspx?i=ce3352

Although the appeal was from a decision made by a Court local to me, I have had no involvement of any kind in the case.

The proceedings related to long-running private law proceedings, and the Court findings in relation to father’s conduct were pretty scathing

Within the proceedings he had made very serious but utterly groundless allegations against the mother, which obviously took time to resolve and were unpleasant.  He raised an entirely false allegation of racism against the NYAS worker who prepared a report in the case (raising this only after the report was received and unfavourable to him) , had effectively been using the court proceedings to harass and intimidate the mother, had made groundless complaints about her to the police

in short she considered that the length of the proceedings, and the fact they had been driven to consider matters of detail at every turn, had been caused by the father’s actions and that he was engaged in a course of action designed to manipulate and harass the mother by using the proceedings as his weapon of choice.

 

It is not altogether unsurprising in that context that the father lost his case, and was made subject to a section 91(14) order exercising judicial control over his ability to make further applications.

The Court of Appeal were entirely satisfied that all of this was justified by the findings that the Court had made, having heard the evidence.

The next issue was however, the Judge having made a costs order against the father. The mother was publicly funded, the father acting as a litigant in person, and having no income.

This was the portion of the original judgment dealing with that application.

  • “I am dealing with an application for costs. It is made by the mother against the father for the costs which she has incurred with the benefit of public funding in this protracted litigation which began life in October 2009. Mr Bergin has stressed that this is not an application made with any pleasure by the mother. It is not therefore a vindictive application. But Mr Bergin properly has to be mindful of the public purse, and the Legal Services Commission in funding the mother’s litigation has been put to enormous expense. So I look at what was behind all of this.

73. The father says he should not have to pay anything. He tells me that notwithstanding the judgment, which has come down heavily against him in terms of being untruthful, he maintains that he has told the truth all the way through and has simply wanted to do right by his children and see his children, and he feels that he had not alternative but to bring the application. I reject the father’s submissions about what prompted the litigation. It is almost unbelievable that in August 2009 this father had an order by consent that guaranteed him regular contact with his children. He says he had to apply in October 2009 because had had lost his job and did not have any money. In my judgment, it was not necessary to launch these proceedings. But beyond that the father has used these proceedings as a vehicle for getting at the mother. At every step of the way he has criticized her and has made allegations about her and he has completely disregarded the interests of the children.

74. I am conscious that the father says he is of limited means. He lives in rented accommodation and he is in receipt of statutory benefits. So it may be that any order for costs could never be enforced. But the question of enforceability is separate. I am satisfied that the case brought by the father had absolutely had no merit. The application followed on a compendious order that gave the father everything he wanted bar calling it a shared residence order. In the three years since his application the father has gone out of his way to make spurious allegations which the court and others have had to investigate and he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable. I am satisfied that, unusual though it is, an order for costs is entirely appropriate and the order will be that the father shall pay the costs of the mother throughout this application from the date of issue. Those costs are to be subject to a detailed assessment and the question of enforcement of costs will be determined separately.”

And this is what the Court of Appeal say about the judicial determination that a costs order was appropriate

  • 15. It is apparent to me, in reading those paragraphs, that the judge had three basic reasons in mind in making the costs order that she did. First of all, towards the end of paragraph 73, she finds that it was “not necessary to launch these proceedings”. Secondly, she finds that the father has “used these proceedings as a vehicle for getting at the mother.” In the same context, later in paragraph 74, she finds that “he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable.” Thirdly, she finds that there was “absolutely no merit” in the case brought by the father. So despite noting, as she does, that he has limited means, lives in rented accommodation, and is in receipt of statutory benefits, and it may be that the order for costs could never be enforced, she nevertheless goes on to make the order that is now the subject of this appeal. Although the judge does not refer to the case-law that I have just made reference to, my reading of her judgment is that it sits plainly within the jurisdiction that Hale LJ described, and which has been endorsed by courts subsequently. This was a finding by the judge that the father had acted unreasonably both in starting the proceedings, but more importantly, in the way he had conducted himself throughout the proceedings. It therefore is plain to me that she, as a matter of law, was justified in considering an order for costs, and I can see no error in her exercise of discretion in deciding to deploy that jurisdiction and make an order in this case.

The issue on which the father appealed was fundamentally the principle of making a costs order against a party with no ability to pay.  Of course, the conclusions that the Judge made at paragraph 74 were that the costs were to be the subject of detailed assessment, and that the issue of enforcement of any costs order was an entirely separate matter to the principle of a costs order being made.  (The fact that the costs order was made did not mean that the Legal Aid Agency would be trying to get the father to make payments out of his benefits, and a consideration of his means would be done at any later stage where the LAA did wish to enforce the order)

The Court of Appeal entirely agreed with the judicial approach

  • 17. Against that background, despite hearing what the father says about the particular incidents, in my view the father cannot succeed in his appeal on the first limb, which is that the judge should not have made an order for costs against him in any event. The second limb in the appeal is that the judge failed to take account of his means and failed to take account of the level of costs that he would be expected to pay. He says, and I readily again accept what he says, that no costs schedule was produced by the lawyers acting for the mother for him to see what it was that he was being asked to pay and for the judge to see what it was he was being asked to pay. He is right to raise that matter with us. He also points out the burden that this costs order would have upon him were it ever to be enforced against him. Given his current means, it would be devastating for him, and he says that he could never get his life back on track if he had to face a bill of this sort. He says that would not only have an impact on him but also, either indirectly or directly, adversely affect his ability to support the children and in other ways that relate to the children’s welfare.

18. Insofar as the absence of a costs schedule is concerned, the judge provided for that circumstance, because her order is plain that there has to be “a detailed assessment of her costs” before the costs order becomes a reality. It therefore is the case that there has to be a process of what in the old days would be called “taxation” of the mother’s costs, adjudicated upon it if necessary, to decide what the reasonable level of costs should be. So the only question is whether we should in some way accept the steer given by Thorpe LJ in granting permission to appeal in requiring the judge’s order to include some phrase such as “not to be enforced without leave”. I am not attracted by that course. The detailed assessment provisions will protect the father from facing a bill which is unreasonable in terms of the elements of the costs schedule itself. The question of enforcement will be for any subsequent court to deal with, on the facts as they then are, as would be the case in any ordinary civil litigation. I therefore do not agree with the view that Thorpe LJ had apparently formed at the permission stage that the judge was in error in not putting in a phrase about enforcement.

19. For the reasons that I have therefore variously given, I consider that the father’s appeal should be dismissed.

So, be warned, egregiously bad litigation conduct which results in hearings and legal costs for the other side can still result in a costs order being made, even where the party is a ‘man of straw’ with no means.  Having no means does not enable the party to engage in bad litigation conduct with impunity.

Whether the order will ever be enforced is another matter, but of course, if the father’s financial circumstances change so that he has means with which to pay the order  (a job, an inheritance, a lottery win or such) the costs order could be legitimately enforced.

So whether you are in the process of advising a person who is carrying on this way that there are risks associated with it, or advising a person on the receiving end of it about the possibility of obtaining a costs order, the case is an important one to be aware of.

Scissorhands versus Scissorhands

An imaginary judgment   [it has been a while, and I always like doing these].  This is like a Kramer versus Kramer for whimsical emo kids…

The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.

 The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long.  Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.

 It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.

 Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.

 The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.

 It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.

 He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.

 The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face. 

One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.

 I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs  (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.

 I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.

 However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm  (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)

 Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

 It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it  – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.

 I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent.  When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.

 My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby.  A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.

 I am therefore driven to conclude that unsupervised contact for this father is not possible.

 I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable).  Nor are any members of her family willing to do so.

 The father has no family members who could undertake this task.

 Neither parent is in a financial position to fund the supervision of contact themselves.

 I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being

 IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912

 And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.

 Having established that no family members can supervise the contact, that leaves only professionals.  A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.

 Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.

 Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?

 The answer, sadly, is that they are not.

 I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)

 I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?

 The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997)  1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far.  Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)

 Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.

 There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment. 

 I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.  

 RE K (Children) 2012   [2013 1 FCR 87]  being authority for that point.

 But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.

 I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.

 To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut. 

  [Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]

 I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.

 It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired  (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future)     – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so.   Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.

  Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.

 I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.

 Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989

 I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent. 

 I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored.  I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)

 The parents, may of course, vary the handover location by agreement.

 I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.

 If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.

 Thank you all for your time. 

 

 edward scissorhands

 

 

[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her.  I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact. 

 

The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called  Judge Knott-Lestyebe  is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.

 

Although even this footnote now gets its own footnote  - a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave  Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.  

Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece - there is no way that post LASPO either party would have had counsel ]

 

Getting the best out of your solicitor

Some general advice and suggestions for making good use of a solicitor in a case involving children.

For most people, the only time they see a solicitor is when they are buying a house, or when something has gone badly wrong for them. So it is not surprising that if you have to go and see a solicitor about your child, you don’t know what to expect.

If you don’t see them in real life, the other place is TV and in films.

The only solicitors we see on television tend to be on crime shows where their role is limited to either (a) being quiet and nodding  or (b) saying  “Stephen, you don’t have to answer that Stephen!” just as Stephen confesses all, two minutes before the final credits.  Or those personal injury lawyers, walking along a street in crisp white blouses looking all stern and ready to kick someone’s ass on your behalf if you fell off a stepladder.

They are either nodding dogs, or rottweilers with lipgloss…

So, when you go to see a family lawyer, you will find that they won’t be like either of those things. They aren’t quiet nodders, and they aren’t rottweilers with lipgloss (well, not always)

[Three quick definitions of phrases we use as solicitors, to put into plain english  :- a solicitor is someone who works in law, who has a degree and has passed specialised training to become a solicitor, and a lawyer is anyone who works in law. All solicitors are lawyers, but not all lawyers are solicitors.   And then ‘instructions’ means the things that you tell the lawyer to do, or what your position is on any question that they ask you about.]

There are some things that you can really do to help yourself for that first appointment (especially important if you are paying for it yourself, since making things more efficient for them is cheaper for you)

  1. When you make the appointment, make it clear what it is about. Is it about a mother and father disagreeing about arrangements for a child, or is it about Social Services and your children?  If the reason for your appointment is that you’ve been sent some papers telling you that you have to be in Court on Thursday, make sure you tell them that, so that the person you are seeing knows that they will be going to Court with you on Thursday.
  1. Bring with you the stuff they tell you to bring. That will usually be, something with your photo on it, and something with your address on it (so they know that you are who you say you are), some recent payslips or benefit book (so that they can work out whether you qualify for free legal advice and can take copies) and any court papers you have been sent.

(I know that the temptation when you get court papers is to tear them up, or write “LIES”   all over the margins, but that really is going to make it harder for your lawyer, as they will be the copies they have to take to court and use)

  1. Have in your mind, or even written down, a short introduction – a page will do.  Who are you, who are the important other people in the case. Who are the children, how old are they, where do they live. If it is about you splitting up with someone, when did you split up?   And most importantly, what is the main reason why you have come to see the solicitor.   “Things were all going okay, I was seeing the children every weekend, until I got this new girlfriend, then my ex stopped all contact, that was four weeks ago”   or  “Social Services say that my son has got a broken arm and it wasn’t an accident and now they want to take it to Court”     that sort of thing.
  1. Be clear in your mind, and say to them, what it is that you really want to achieve.   “I want to get my contact started up again”   “I want my son to stay with me and not go into care”
  1. You may also want to have in your mind a Plan B – if it is not possible to get what you really want, what is the next best thing?  Having a Plan B doesn’t mean that your solicitor will give up on your main thing and go straight for that, it just means that it is better to be prepared in case your main aim is not something you can achieve straight away.
  1. Everything you say to your lawyer is secret. They won’t tell anyone else, so you can tell them the truth. The one qualification to that is that if you tell them that you have lied, and ask them to keep on with that lie for you, they won’t be able to do that. So you would have to then decide whether to get new solicitors, or whether to change your instructions to them so that you aren’t asking them to lie to the Court.

[You might be a bit surprised about that – I know that for most people, lawyers and lies go together like wasps and strawberry jam, but actually, there are really strict rules about it. A lawyer can’t ever lie to the Court or mislead the Court.  They can legitimately do their best to put you in the best possible light, and to take any criticisms that other people are making about you and defend you against them, but they can’t say that you did X or Y, or didn’t do X or Y, if you have told them different.   The rule is that they can make you look good, or less bad, but they can't lie for you]

  1. Your lawyer is going to have the best chance of being able to achieve what you want if there are no surprises in store for them. It is no fun preparing a case for Mother Theresa, only to get to Court and find that the other side have lots of evidence that you drink like a fish and were in prison for punching policemen in the face.  Best to know that sort of thing up front, so the lawyer can deal with it and plan for it.
  1. Give the lawyer the best way to get in touch with you – whether that is mobile, email, or by letter. If there are specific problems (you can send me a text, but I never check my voicemail) then let them know.  If you change your mobile number or your address, let them know.
  1. If during the meeting, or afterwards, you feel like you don’t understand something, just ask.  You have come into a world that is strange, that has weird language, weird customs and everything is new to you. It really is fine to say “Hang on a second, I’m not sure I get what a CAFCASS officer is, can you explain it again?”
  1.  At the end of the meeting, make sure you know what is going to happen next. Are they asking for you to do anything? If so, what is it, and when should you do it? Or are they doing something for you, in which case what is it, and when would they need to talk to you or see you again?

Going to Court

  1. Make sure you know where the Court is, and what time you’ve got to be there. You usually want to be in Court forty minutes or so before the hearing is due to start.  Be aware that like a doctors surgery, everyone is told to be there at ten or two, so you might not be the first case to be heard and there might be waiting around.
  1. Get to Court on time.  Take the papers with you, and when you book in, say which case you are there about and who your solicitor is.  If you can’t make it or you are late, ring your lawyer to let them know.  They may have booked someone else – a barrister to come to court and speak to the court on your behalf. They will know the background to your case and they will probably have some additional things they want to talk to you about.
  1. Probably not a good idea to talk to anyone else who is on the case or sit near them, just find a spot on your own until your lawyer finds you.
  1. As tempting as it is to go up to the social worker / your ex and shout “Happy now are you?”  or similar stuff,  you should really avoid it.
  1. When you go into Court, sit on the row directly behind your lawyer. It is Court manners to all stand when the Judge/Magistrates come in, and go out.  (Usually there will be someone official who says “All stand”).  Even if you are a rebel-without-a-cause  “nobody tells me what to do” sort of person, just stand up, it really isn’t worth causing a fuss over.
  1. Ideally in the Court hearing, unless you are giving evidence, the only person you should speak to is your lawyer, which you will do very quietly. Don’t interrupt or shout out when other people are talking, and don’t sit there whilst other people are talking saying “well, that’s lies” and so on. If someone does say something that is wrong, or a lie, or a mistake, gently get your lawyers attention and let them know what you have to say about this.
  2.  Storming out of the Court room, slamming the door never looks good. If you need to leave the room, just quietly say to your lawyer that you have to go outside for a bit, and why. And when you come back in, don’t make a big fuss, just come and sit down behind your lawyer.
  3. After the hearing, make sure you understand what happens next, what anyone expects you to do, and if the case is coming back to court on another day, that you know when that day is.

Giving evidence

  1. If you think you are going to have to give evidence, ask your lawyer beforehand how that works – where you stand, how to speak and so on. Your lawyer can’t tell you how to answer certain questions (that’s called ‘coaching’ and is banned) but they can give you tips on how to give your evidence and how to keep calm if you find yourself getting confused or upset or angry.
  1. You will give evidence from the witness box. The first thing you will have to do is give a promise to tell the truth, and that promise is written down on a sheet of card for you to read out. You can swear on the bible, or other holy book, or you can ‘affirm’  which means reading the promise out without having your hand on a holy book, if you aren’t religious.
  1.  The top tips in giving evidence are that everyone in the room is trying to write down what you say, so speak a bit louder and a bit slower than you normally would,  don’t take anything personally, and it is not a quiz show where you have to answer immediately so if you want to take a few seconds to think about your answer that is fine.

Hopefully, and this is the idea of the whole thing, you will find a lawyer who listens to what you have to say, gives you good advice and who you feel you can trust and who is doing the best job they can for you.

If you don’t, you need to try to sort this out. Not by simply not communicating with them, or by ringing them up and shouting, but by saying “The other day when X happened, I don’t think you really did what I wanted. Can you explain why that happened?”

If you can’t resolve it by talking through your problem, then you may want to get another lawyer, maybe someone at the same firm, maybe a different one, and you should be able to get guidance on how that works.

But if you don’t talk to your lawyer, especially about any big changes in your life or your case, or about your worries or doubts, they won’t be able to help you, and that is what they are there for.

Is there truly such a thing as an ‘anonymous’ referral?

 

 A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

 

 

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

 

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father.  The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

 

The referrer had requested anonymity.

 

(We go back here to D v NSPCC 1978 AC 171  which established that a principle called  Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services,  and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence.    In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

 

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’   – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

 

 

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

 

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

 

  1. Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
  2. At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

 

 

The Judge at first instance, who was Mr Justice Peter Jackson  analysed the issue in this way :-

 

  1. a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

  1. In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  1. Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
    • Article 6, entitling A and her parents to a fair hearing of X’s allegations;
    • Article 8, guaranteeing respect for the family life of A and her parents;
    • Article 8, guaranteeing respect for the private life of X; and
    • Article 3, prohibiting inhuman or degrading treatment of A and of X.
  1. Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
  1. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

 

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information  (he approached it in that order, which becomes relevant later)

 

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

 

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him  (and not even knowing who it was he was alleged to have abused)  would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.  

 

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

 

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

 

 

  1. Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.
  1. Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
  1. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
  1. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

 

 

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

 

 

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

 

  1. Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources'; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.
  1. For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

 

  1. In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

  1. For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

 

 

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

 

40         I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

 

And of course, the key issue in this case is that the referrer X, was not someone who was saying  “I have seen father do such and such to a child” or “I believe father has done such and such to a child”  but that “when I was a child, this man did such and such to me”     (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

 

But the principle remains – in the light of this authority, and the ones cited within the judgment  (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593)  )   http://www.bailii.org/uk/cases/UKHL/1995/17.html  

 

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

 

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’)   then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

 

The deck was stacked pretty heavily in favour of the referrer here  –  she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

 

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed. 

 

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone.  If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

 

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.  

 

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]

 

 

Family preservation versus child rescue

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

http://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation(http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

I wish I was Special, you’re so very Special (Guardians)

 

 Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

 

 

I did an SGO hearing this week, and two things struck me on it. 

 

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

 

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

 

 

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it.  [I won’t name her, but it was a fascinating issue – well, to me at least]

 

The question, in simple terms, is this :-

 

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

 

 

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact.  From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

 

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

 

 and three possible contact quantums

 

Six times per year

Two or three times per year

No direct contact or once per year

 

 

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

 

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them. 

 

 

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

 

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

 

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

 

 

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’  but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55  and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

 

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

 

Compare RE L  (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

 

With  RE R (A CHILD) (2005) [2005] EWCA Civ 1128  where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

 

In Re L – the contact order and various conditions, had been at the behest of the Local Authority,  and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

 

This is what the Court of Appeal said about that  (underlining mine)

 

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

 

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

 

 

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

 

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

 

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

 

 

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

 

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

 

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual  (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

 

[*to me, not necessarily universally]

 

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact.  But how much distance remains uncertain.

 

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it.  I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us.  Is there some part of the contact process which differs in a case of Permanence  (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

 

 

 

 

Post-script

 

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

 

I’d thought that the application would just be a straightforward section 10(9) leave application  (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from  RE G (A CHILD) (2010) [2010] EWCA Civ 300  that the Court of Appeal have ruled that it is appropriate to use the Warwickshire  test   from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084  that test being  (I’m paraphrasing, but not by much)  “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

 

Using the Warwickshire test makes it very hard, without question.  

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

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