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Category Archives: intervener

You can’t hurry issues of disclosure of anonymous referrers

 

Tenuous title, based on nothing more than it being a Supreme Court decision – and it didn’t fit my “Chicken Supreme” headline, which will be saved for a decision which deserves it. Big important case though.

I’d previously blogged about the Court of Appeal decision in this case, but now the Supreme Court have decided it once and for all.  In RE A (a Child) 2012    (which is weird, because the appeal case was re j, and we all anticipated this being re x)

The judgment is here

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0193_Judgment.pdf

 

You may recall, that the case involved an allegation of  a sexual nature being made against a father by a person who wished to remain anonymous. The father wanted to know the details of the referrer, with a view to establishing  a case of why this person might make ghastly and untrue allegations against him; and the Court of  Appeal had to grapple with the twin concepts of article 6 right to a fair trial, and the broad public interest immunity in people being able to make referrals about child abuse in an anonymous capacity, to remove the risk that proper referrals might not be made if the person wishing to make one was fearful of reprisals, both in and out of Court.

I have put that in a very clumsy manner, let’s see how genuinely clever and articulate people do it

1.We are asked in this case to reconcile the irreconcilable. On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm.

Much better.

 

The issues in this case of course go much broader and deeper than the case itself, and cut to the heart of how the Court is to tackle allegations which on the face of it are serious and grave but where the primary evidence is from someone who wishes to remain anonymous and does not want to come before the Court and have the primary evidence tested by cross-examination.

From the ‘public interest in anonymity’ standpoint, a better case could not have come before the Court – the allegations were not to be determined at a fact-finding, the identity of the referrer was known to the Local Authority who were able to notify her and she was able to secure intervenor status and undertake psychological assessments showing how devastating and harmful revealing her identity might be. It must be at the high watermark of cases where the concern about disclosure is significant and real, rather than theoretical and about the principle in a wider sense.

The Supreme Court helpfully set out the positions of the respective parties

13.The positions of the parties are as follows:
(i) Sarah Morgan QC, on behalf of X, resists disclosure on the primary ground that this will violate her right not to be subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights. Alternatively, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents’ interests but without disclosure to the father.
(ii) Paul Storey QC, on behalf of the Children’s Guardian, supports disclosure in the interests of A. A’s right to respect for her private and family life is engaged, as potentially is her article 3 right to protection from abuse: see Z v United Kingdom (2001) 34 EHRR 97. The allegations cannot be ignored but they cannot be taken into account unless they can be properly investigated.
(iii) The mother is in the same position, but with the additional feature that she knows who X is and believes the principal thrust of her allegations to be true. She understands that it will not be possible to rely upon these unless they can be properly investigated but she will have great difficulty in agreeing that the father should resume unsupervised contact with A unless they are.
(iv) The father also supports disclosure. He might instead have relied on the mother’s inability to pursue the allegations without disclosure but he wishes to have them resolved. Not having seen the history of how and when X’s allegations were made, he does not accept the judge’s conclusion that they were not prompted by the mother.
(v) The local authority now adopt a completely neutral stance as to disclosure. Roger McCarthy QC on their behalf accepts that if the material is not disclosed in these proceedings it would not be possible for the local authority to bring care proceedings to remove A from her mother unless the material could be disclosed in those proceedings. In other words, they accept that they cannot have it both ways and put all the burden of protecting A upon the mother without giving her the material with which to do so.

 

The law is then set out

 

14. It is convenient first to look at the principles governing the issue at common law, before considering how these may have been affected by the implementation of the Human Rights Act 1998.

15. The local authority claim public interest immunity for their records relating to X and her allegations. They are doing so because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. That this is a class of information to which public interest immunity attaches has been established since the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. That case accorded to people who informed the authorities of allegations of child abuse the same protection as informants to the police and the gaming authorities. It is not the fact that the information is communicated in confidence which attracts the immunity, but the public interest in encouraging members of the public to come forward to help the authorities to protect children. That this may also protect an untruthful or malicious informant is the necessary price to be paid. Although D v National Society for the Prevention of Cruelty to Children was concerned with a neighbour who claimed to have witnessed the alleged abuse, rather than a victim, I can see no reason why the same rationale should not also apply to the victims of alleged abuse.

16.That is not, of course, the whole story. The immunity is only the starting point, for without it there is no question that all documentation relevant to the proceedings must be disclosed. Public interest immunity is not absolute. The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance.

17.If the public interest against disclosure prevails, the decision-maker, whether judge or jury, is not entitled to take the information into account in deciding the result of the litigation. There is no hard and fast rule as to whether the same judge can continue to hear the case. It is well-established that a judge may do so in a criminal case, but then the jury and not the judge are the finders of fact. It may also be possible to do so in a civil case: see Berg v IML London Ltd [2002] 1 WLR 3271. The well-established test of apparent bias will apply: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357.

18.Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties. As Lord Devlin put it in In re K (Infants) [1965] AC 201, 238, “a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed”. He went on, at p 240, to approve the words of Ungoed Thomas J at first instance [1963] Ch 381, at p 387:
“However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. . . . In general publicity is vital to the administration of justice. Disclosure to the parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further.”
Thus, while there was no absolute right for the mother to see the report made by the Official Solicitor as guardian ad litem for a ward of court, the discretion to refuse it was to be exercised “occasionally and with great caution”. Lord Evershed had earlier set the bar extremely high when he said (at p 219) that “a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue” (emphasis supplied).

19. In In re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593, referred to by the Court of Appeal in this case as the “starting point”, Lord Mustill, at p 611, did not accept that Lord Evershed intended those words to be read literally as a standard applicable in every wardship case, let alone in adoption cases which were governed by the Adoption Rules. These then provided that all reports were confidential, but that an individual could inspect any part of such report which referred to him, subject to the court’s power to direct otherwise. In Children Act proceedings, Lord Mustill preferred the broader principle enunciated by Glidewell LJ in In re B (A Minor)(Disclosure of Evidence) [1993] Fam 142 at p 155:
“Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it.”

20. Thus Lord Mustill concluded, at p 614, that “the presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only if the judge is satisfied that real harm to the child must otherwise ensue”. He went on, at p 615, to enunciate the principles which have been recited ever since:
(i) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.
(ii) When deciding whether to direct that a party referred to in a confidential report in adoption proceedings should not be able to inspect the part which refers to him or her, the court should first consider whether disclosure of the material “would involve a real possibility of significant harm to the child”.
(iii) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
(iv) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

21.It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child. If they were to be applied in this case, it is clear that there is little or no risk of harm to A if the material is disclosed. The risk is if the material is not disclosed and a wrong decision is reached as a result.

22. The principles enunciated by Lord Mustill do not address whether it might be possible in Children Act proceedings to withhold information which is to be taken into account by the court from any of the parties on the ground that disclosure might cause harm to someone other than the subject child. In In re B, above, the proceedings were about a father’s contact with his 12-year-old son. His 15-year-old half-sister had made serious allegations of sexual abuse against her stepfather which the mother wanted the court to take into account without
disclosing them to the father. As Glidewell LJ pointed out, at p 156, the order was sought, mainly if not entirely, for the protection of the half-sister and it was the son’s welfare which was the court’s paramount consideration. Even if it were suggested that in some way the son might be harmed by disclosure (though the suggestion was rather that having to keep his sister’s allegations secret would be harmful to him), that possibility had to be weighed against the grave injustice which would result from non-disclosure. So even in a case where the third party was a child, it was the interests of the subject child which might have justified non-disclosure.

23.We therefore have to look outside those authorities for the source of any power to withhold such information in the interests of a third party. As the common law stands at present, in the absence of a statutory power to do so, the choice is between the case going ahead without the court taking account of this material at all and disclosing it to the parties.

 

The Court went on to consider the human rights implications, and chief amonst these was whether there were article 3 and article 8 rights attaching to the referrer who wished to be anonymous, to be weighed against the article 6 rights of the parents facing allegations about which they did not have full information

24.To what extent, if at all, are these principles affected by the Human Rights Act 1998? In A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, the Court of Appeal accepted that the principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosure.

25.It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

26.However, Miss Morgan on behalf of X has relied principally (as did the mother in A Local Authority v A) upon her article 3 right not to be subjected to inhuman or degrading treatment. Requiring X to give evidence in person would, she argues, amount to treatment for this purpose, but so too would the act of disclosure because of the effect that it would have upon X. Dr W was specifically asked to distinguish between the effect of disclosure and the effect of giving evidence (see para 6(vi) above). She replied that disclosure alone would potentially be detrimental to her health. She pointed out that her condition had deteriorated considerably recently, to such an extent as to be life-threatening. Disclosure would
inevitably subject her to further stress. There was therefore a significant risk that exposure to further psychological stress would put her at risk of further episodes of illness. That, argues Miss Morgan, is sufficient to bring the effects of the treatment up to the high threshold of severity required by article 3. X has therefore an absolute right not to be subjected to it.

27.The other parties to these proceedings question whether mere disclosure can amount to treatment within the meaning of article 3. They also support the conclusion of the Court of Appeal that the effects of disclosure alone would not reach the minimum level of severity required to violate article 3. Indeed, Peter Jackson J, while concluding that requiring X to give evidence would probably reach that high threshold, did not hold that disclosure alone would do so. He did not say that it would not, but it is clear, not least from the questions he asked of Dr W, that he was fully alive to the distinction between the effects of disclosure and the effects of giving evidence.

28.If her argument on article 3 is not accepted, Miss Morgan’s secondary case on behalf of X is that the invasion of her private life which would result from disclosure of this material in these proceedings is so grave that it would be disproportionate to disclose it. The court should therefore contemplate some form of closed material procedure, which would enable the material to be put before the court and tested, without disclosing either her identity or the details to the other parties.

 

That suggestion is broadly what had happened in the original High Court case, the Judge had seen the information and determined that it was not something on which a finding of fact hearing was required, and put it out of his mind – one major issue for the Court of Appeal was whether the Judge who had undertaken that process and set the information out of his mind could genuinely do so and was in a position to conduct the remainder of the case without the parties having the impression that evidence not seen by them might be influencing him in some way.

29.If we were dealing with the common law principles alone, the answer would be clear. There is an important public interest in preserving the confidence of people who come forward with allegations of child abuse. The system depends upon the public as its eyes and ears. The social workers cannot be everywhere. The public should be encouraged to take an interest in the welfare of the children in their neighbourhoods. It is part of responsible citizenship to do so. And that includes victims of historic child abuse who have information about the risks to which other children may now be exposed.

30.But many of these informants will not be required to give evidence in order to prove a case, whether in criminal or care proceedings, against the perpetrators of any abuse. Their information will simply trigger an investigation from which other evidence will emerge. Their confidence can be preserved without harming others. In this case, however, that is simply not possible. We do not know whether A is at risk of harm from her father. But we do know of allegations, which some professionals think credible and which would, at the very least, raise the serious
possibility of such a risk. Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. That simply cannot be done without disclosing to the parents and to the Children’s Guardian the identity of X and the detail and history of the allegations which she has made. The mother can have no basis for seeking to vary the arrangements for A to have contact with her father unless this is done. If this were an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie.

31.It is, of course, possible that the harm done to an informant by disclosing her identity and the details of her allegations may be so severe as to amount to inhuman or degrading treatment within the meaning of article 3. The evidence is that X suffers from a physical illness which is at times life-threatening and that her condition deteriorates in response to stress. The father does himself no credit by belittling this. There was some discussion about whether we were here concerned with the duty of the state to take positive steps to protect her from harm (under the principles explained in Osman v United Kingdom (1998) 29 EHRR 245) or with the duty of the state to refrain from subjecting her to harm. As we are here considering the actions of the state – whether the state should disclose to others information which she gave it in confidence and, in future, whether the state should compel her to give evidence in these proceedings – I have no doubt that we are here concerned with the primary, negative, duty of the state to avoid subjecting her to inhuman treatment.

32.However, when considering what treatment is sufficiently severe to reach the high threshold required for a violation of article 3, the European Court of Human Rights has consistently said that this “depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim”: see, for example, Kudla v Poland (2000) 35 EHRR 198, para 91. The court has also stressed that it must go beyond “that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment”: para 92. Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. A well-known example is medical treatment, which may well be experienced as degrading by a patient who is subjected to it against his will. However, “A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading”: Juhnke v Turkey (2008) 49 EHRR 534, para 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para 82. Obviously, the ends do not justify the means. But the context in which treatment takes place affects the severity of its impact. The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a
consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her. I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention.

33.However, that may not be the end of the matter, for to order disclosure in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?

 

The Supreme Court here are agonising with the irresistable force of not wanting to cause harm to a vulnerable individual who made an allegation in an expectation of anonymity, and the immovable object of article 6 and the right to a fair trial. They have a quick look at whether they can avoid the irresistable force hitting the immovable object by digging a hole to divert the path. Will it work?

 

34.It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.

35.The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference
with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

No.

And they therefore have to conclude that the immovable object of article 6 is indeed immovable, and the irresistable force of articles 3 and 8 and PII will just have to be resisted. The parents have a right to see the details of the referrer.

 

They do go on to assess how the article 3 and 8 rights might be massaged a bit, and that disclosure of the referral and identity of the referrer does not necessarily mean the referrer giving evidence, that would be a separate issue as to whether she was fit to do so.

 

The cynic in me suggests that we might well see an end to the days when the Local Authority took the names of the referrer who wished to be anonymous. That obviously sidesteps any issue of disclosure of their identity. But Local Authorities will certainly need to arrive at a proper script in the light of this case for what is told to people who ring up wanting to make a referral and who wish to be anonymous.

Because if they are told now “It’s okay, your name will be kept out of it and the family won’t know it was you” then it seems to me that there’s a prospect of satellite litigation about whether the LA properly informed them of the consequences of their action.

Additionally, it is not clear to me whether the LA are supposed to cough up the name and just waive PII (which poses some, but not insurmountable problems in PII law), or whether they place the matter before the Court and for the Court to order that the interest of justice override PII, or whether the procedure here where the referrer get intervenor status and a chance to argue article 3 and article 8 is the right one.

 

One thing is for sure, seeing the words “Anonymous referral” in a social work chronology is now not the end of the story, but the start of a whole new diverting chapter of litigation.

 

 

 

So tired, tired of waiting, tired of waiting for you

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

http://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

“When they begin, to intervene…”

Sorry, the titles just get worse.  (but I bet you’re humming it already)

 Two important cases on Interveners in fact-finding hearings, or  “Re T for two”

 

The first is the Supreme Court decision in Re T.

 

http://www.supremecourt.gov.uk/docs/UKSC_2010_0244_Judgment.pdf

 

 

This relates to an appeal from the Court of Appeal, which in turn considered an appeal from a County Court.  It related to the order at the conclusion of a finding of fact hearing (which took 5 ½ weeks) that one of the Interveners, who was not publicly funded and who was not found to have perpetrated the injury, should have his costs paid by the Local Authority, who had brought the care proceedings.

 

This was a very important case for both Local Authorities and those who represent Interveners, particularly those who would not financially qualify for legal aid.

 

The costs that the Intervener had to pay was £52,000 so one can see why the  Court of Appeal were looking around for someone to foot that bill, since the Intervener was found to be blameless.

 

The children had made allegations of a sexual nature against the father and six other men, all of whom intervened. Five received public funding, the sixth did not.

 

All of the interveners were exonerated at the finding of fact hearing.

 

4. It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based “on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs”.

The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J inSutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with “potentially life-changing allegations” without being able to gain some financial assistance from the State.

 

 

I don’t disagree with that at all, and I think the judge at first instance got this entirely right. It is deeply unfortunate that someone faced with allegations as grave as this, particularly where they are disproved has to pay their own costs, but that misfortune can’t extend to making the Local Authority pay unless their conduct in bringing the case is reprehensible or unreasonable.  Otherwise one runs the risk of very serious cases not being put before the Court as a result of fear of costs orders being made if the allegations are not established.

 

[Frankly, I think non means, non merits legal aid ought to be available to any party who is able to satisfy the Court that they should be involved within the proceedings, whether as an Intervener or a party given leave to make an application; but that was obviously beyond the scope of the Courts]

 

This is interesting, from paragraph 6  (and these were some heavy-hitters in the world of counsel)

 

It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.

 

CAFCASS in the case submitted that the Court of Appeal decision was the first one where a Local Authority were ordered to pay costs where there was no criticism of its conduct of the litigation  (effectively adopting a civil – “loser pays” philosophy)  and that, of course, is why the case was important enough to make it to the Supreme Court.

 

Particularly, this passage at para 18 of Wilson LJ’s judgment in the Court of Appeal on this case  (the ‘general proposition’ being that costs orders shouldn’t be made in family proceedings in the absence of unreasonable conduct)

 

            “I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact-finding hearing the judge concludes that they have not established them, the general proposition is not in play.”

 

 

The Supreme Court sum up the issues admirably here:-

 

39. The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant’s costs should be publicly funded. The former question is for the court; the latter for the legislature. Whether a litigant’s costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights. Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the intervener’s costs. We consider that this argument was misconceived. The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.

 

40. The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989. The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C-427 of the Legal Services Commission Manual. There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.

 

 

And I would suggest that the Supreme Court here were expressing a deal of sympathy for the suggestion that the LSC ought to be stumping up for interveners, but are obviously bound by the funding code  [in the absence of a judicial review challenge to the construction of that funding code or its exercise in a particular case]

 

 

And they conclude the case here:-

 

41. If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.

In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs. The burden of costs awarded against local authorities in such circumstances is likely to be considerable. When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.

 

42. In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

 

43. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate “in the vast run of these cases to make an order for costs in whole or in part by reference to the court’s determination of issues of historical fact”. But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

 

44. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse’s costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.

 

 

I’m usually a believer in Kim Hubbard’s remark “Whenever someone says, ‘it’s not the money it’s the principle’ it is always the money”    but in this case, the Local Authority involved (Hull) have clearly taken this case up to the appropriate level of judicial decision-making as a matter of principle  (they’d already paid the grandparents their costs, and weren’t seeking to recover them), and I thank them for it.

 

 

Just when I thought I was out – they pulled me back in – Michael Corleone

 

 

The second case also involves a very heavyweight group of counsel, and a case involving an Intervener. 

 

Again, it is Re T  (how thoughtless)   but this time RE:  T (Children) [2011] EWCA Civ 1818

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed99436

 

(That also contains a very good summary of the case, and is indupitably going to be better than my attempt)

 

Within care proceedings, allegations were made of physical abuse and sexual abuse against one of their uncles ‘DH’  who was 18 by the time the appeal was heard, and one must assume an adolescent/child at the time the allegations were said to have occurred.

 

There were a raft of other threshold concerns in the case, and it was accepted that findings of sexual abuse, though capable of being made, were going to be challenging as opposed to straightforward.

 

The Local Authority sought, amongst other matters, a finding against the father that he had sexually abused DH and that it was this sexual abuse that had led to DH in turn abusing the other children.

 

 

At the pre-hearing review, DH did the smartest thing I have ever seen an Intervener do within care proceedings, and that is to say in terms “this doesn’t seem to be a very good idea for me to be involved in this, and I’m out”   (I hope he said it in a Duncan Bannatyne accent, but given that he was being represented by the splendid Rachel Langdale QC – my third favourite Rachel/Rachael, I somewhat doubt it)

 

The Judge agreed that he should cease to be an Intervener, and instead give evidence as a witness.  The Local Authority, supported by the father, appealed that decision.

 

The Court of Appeal determined that the appropriate decision on whether any particular allegation proceed to a finding of fact hearing is as set out in

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

And then went on to consider whether the allegations that the LA made that directly involved DH  (that he had abused the children, and that had arisen because he had himself been abused by father) were such that they needed to remain live issues in the case.  The resonant (though unpleasant to the squeamish) phrase “the allegations of sexual abuse have come dripping in during the course of the proceedings”  kept being used in the judgment.

 

The finding of fact hearing that was already listed was down for 20 days, and had five silks, six if Miss Langdale QC remained representing DH.

 

The father’s case was essentially that DH could not be relied upon as a witness and was of bad character – as a witness there would be limits in what could be put to him, whereas as an Intevenor, it would be possible to go further. There were, the father submitted, significant problems in the LA seeking a finding that the father had sexually abused DH without considering what was the root of that finding (the allegations that DH had abused the other children)

 

The Court of Appeal considered that it was a matter for the trial judge to determine what allegations it was appropriate to consider in a finding of fact hearing and which were peripheral, and therefore whether DH was required to be an Intervener, or whether he could be discharged as an Intervener and merely be a witness

 

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life’s experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say “I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out.”  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him. 

 

 

Unfortunately, though the principles are interesting, it is quite case specific, and doesn’t really analyse whether an Intervener can actually bail out as a strict matter of choice, having seen the totality of the evidence and taking a view that he no longer wishes to participate. 

 

It is clear that someone cannot be compelled to intervene in proceedings or compelled to be a party, because we always ‘invite X to consider becoming an intervener’   but once they are in, are they in for the long-haul, or not?

 

I think that I would argue that since one cannot stop a father, say, in care proceedings from simply ceasing to give instructions or attend Court, and effectively playing no role  [save for the possibility of witness summonsing him to give evidence]  it cannot be right that someone is forced to continue as an Intervener against their will.  But it is of course an application for leave to withdraw, and with any application, it must be at least theoretically possible for a Judge to say ‘yes’ or ‘no’  since if not, it isn’t an application at all, but a rubber stamp.

 

In this case, if the Court of Appeal HAD considered that the allegations against DH did warrant a finding of fact hearing, they could have overturned the decision to give LEAVE for DH to withdraw as an Intervener, but the Court would have been fairly powerless had DH said “I am sacking my legal team, I will not file any statement and I will not attend the hearing or make any representations unless I am witness summonsed, whereupon I will attend only to give evidence”   – he would have been an intervener in name, but not in reality.

 

I had thought that I recalled a case that findings against a non-party could only ‘stick’ if they had been an intervener, but I can’t find it, and my memory of it is going back to the late nineties, so I am probably wrong.  [It did lead me down an interesting sideline of seeing just how many of the 1990s cases about inteveners were a judicial "I should coco, sunshine, on your bike" whereas we now have people intervening at the drop of a hat]

 

 [So the long and the short of it is – as an intervener, you won’t get your costs so you may as well ‘get your coat’]

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