The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.
(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)
Skipping ahead to the core analysis and decision on threshold and the applications:-
- I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:
i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.
ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.
iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.
iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.
As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.
- What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
- In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
- I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.
I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:
i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.
ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.
iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.
iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.
v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.
For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.
A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority” (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)
We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.
- On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:
“Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”
Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.
- The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.
The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that
- It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
- Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
- CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.
Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-
1. Could those things be proved? And proved properly, not merely relying on hearsay?
2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?
To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.
In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:
“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …
Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”
That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.
The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?
- There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
- The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
- It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
- Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.
That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here
9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.
and then in paragraph 10
The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.
- Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.
12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.
What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’ – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test. “seemed”, “appeared” “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.
After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be sharply focussed on:-
This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.
As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to. These things may have some value (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.
I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.
Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.
- In her statement SW1 returned to the same theme. I need set out only the key passages:
“the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …
… it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”
- In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
- As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
- If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.
The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis
- It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
- I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.
Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…
I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.
This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.
This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.
If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.
Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.