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Category Archives: threshold criteria

Adoption – here we go again?

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

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

 

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

Re J (A child) 2015

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

 

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

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

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

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

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

 

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

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

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

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

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

A tottering edifice built on inadequate foundations

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.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

 

(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:-

 

  1. 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.

  2. 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”?
  3. 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.
  4. 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.

 

And later

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.

  1. 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.

  2. 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

 

  1. 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.
  2. 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.
  3. 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?

and

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?

  1. 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.
  2. 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.
  3. 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.
  4. 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”.

  1. 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.

  1. 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.”

  2. 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.”
  3. 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.
  4. 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

  1. 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″.
  2. 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.

Epilepsy and rib fractures

 

 

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

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

Re O (Minors) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B44.html
The case threw up a number of important issues. The parents defence had been that they had not done anything and that there had been a Vitamin D deficiency, leading to rickets, leading to weak bones. A substantial amount of expert evidence was called on this, and eventually it went nowhere.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Judge had this to say about epilepsy

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

 

What the Court want from experts, and other adventures in judicial ass-whupping

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

  1. Dr Rylance’s report
  1. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.
  1. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.
  1. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4th and 5th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.
  1. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.
  1. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.
  1. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.
  1. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.
  1. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

  1. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.
  1. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.
  1. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”
  1. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.
  1. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.
  1. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.
  1. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.
  1. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.
  1. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.
  1. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

  1. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.
  1. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”
  1. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.
  1. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”
  1. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”
  1. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.
  1. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.
  1. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.
  1. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

  1. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.
  1. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.
  1. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

  1. 94.   Case handling by the local authority
  1. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.
  1. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.
  1. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.
  1. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
  1. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.
  1. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.
  1. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”
  1. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”
  1. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.
  1. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.
  1. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.

Guidance to Local Authorities where one parent murders the other

Thankfully such cases are relatively rare – not perhaps as rare as one would hope – a third of female homicide victims are killed by their current or former partner (the figures for male homicide victims are 6% – males can of course be the victims of abuse, not just the perpetrators).

Dreadfully, the Home Office crime statistics reflected in 2001 and 2005 that this represented two women per week.   (And even worse, if that is possible, the statistic that treating the physical injuries from domestic violence accounts for 3% of the annual NHS budget – Wellby 2004)

In such a case, what ought the Local Authority to do about it?

The High Court addressed the issue in Re N v B and Others 2013

http://www.familylawweek.co.uk/site.aspx?i=ed115442

The children’s father had killed the mother and was imprisoned as a result. The children went to stay with their maternal grandmother, who in due course applied for an adoption order in relation to them. There was considerable debate before the Court as to whether adoption or Special Guardianship was the right order to make – there being no dispute whatsoever that the placement with grandmother was the right one.

The Court analysed the issues to be taken into account when making such a decision very carefully

22. The paramount consideration of the court when considering this issue is the welfare of the child throughout his life, in accordance with section 1 Adoption and Children Act 2002 (‘ACA 2002′). The court must consider which order will better serve the welfare of the particular child (per Wall LJ Re S (Adoption Order or Special Guardianship) [2007] EWCA Civ 54 at para 47 (iii)). There is no presumption in favour of one order or the other, each case turns on its own facts. In accordance with ss 47 and 52 ACA 2002 in considering an adoption order the court needs to consider whether the welfare of the child requires the consent of the father to be dispensed with.

23. One of the relevant considerations in this case is whether an adoption order would skew the family relationships in the grandmother’s home. The grandmother’s brother is the father’s father; the children’s parents were first cousins. The children live with the grandmother and maternal aunts and uncles. They have contact with another maternal aunt who lives nearby with her husband and son, and their great maternal aunts who also live nearby. In the event of an adoption order their maternal grandmother would become their adoptive mother. Their aunts and uncles would become their legal half siblings. The paternal grandfather would become their paternal uncle and the father their first cousin. Following the death of the mother the grandmother has severed all contact with her brother and his family.

24. This shift in family relationships, in the event of an adoption order being made, was explained in some detail to the grandmother by a Senior Practitioner in the Local Authority Adoption Team, as described in the special guardianship report. She notes the grandmother had an understanding of the consequent shift in legal relationships throughout the family in the event of an adoption order being made.

25. InS v B and Newport City Council: Re K [2007] 1 FLR 1116 the impact of an adoption order in family placements was considered important by Mr Justice Hedley, when refusing to make an adoption order in favour of a special guardianship order. At paragraph 22, following a review of the underlying policy for adoption, he stated

One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming.’

26. The skewing of familial relationships is clearly an important factor to put in the balance.

27. Another important factor is the concern the grandmother has about the father seeking to exercise his parental responsibility.

The last point was a particularly significant one here, since under a Special Guardianship Order, the grandmother would have found herself in the position of having to regularly consult with the father (who was after all, the man who killed her daughter) about the children’s upbringing, whereas an adoption order would end his parental responsibility.  The counterpoint to that is that it alters legally the relationship between the children, such that their grandmother becomes in law, legally their mother, their aunt becomes their sister, any cousins would become their nieces and nephews (and oddly, that their birth mother, becomes legally their deceased sister)

The Court concluded that in the circumstances of this case, the advantages of adoption far outweighed those of Special Guardianship

31.  I have reached the clear conclusion, in the particular circumstances of this case the welfare of each of these children throughout their lives can only be met by an adoption order being made rather than a special guardianship order. I have reached that conclusion for the following reasons:

(1) What both children need now and for the rest of their minority and beyond is a secure home. That is what their grandmother can provide, supported by the maternal family who live there or nearby. They wish to remain in her care. As the Children’s Guardian submitted there is no birth parent that can care for them.

(2) Although it is right that an adoption order would skew family relationships I am confident that despite the shift in family relationships that would follow, the children will know the realities of the relationships within the family. That is clear from the grandmother’s recent statement and the observation in the special guardianship report that the grandmother and the family are ‘secure in their knowledge of the children’s identities and they know the children’s histories’.  This view is supported by the conclusions of the Children’s Guardian at paragraphs 24 – 26 of his report.

(3) In this particular case a powerful consideration is the need for the grandmother not to have to share parental responsibility with the father. Particularly in circumstances where I am satisfied, from what the father has said, that he is likely to try and exercise it, even with a restriction under s 91 (14) and other restrictions under s 8. As recently as December 2012 he was declaring that it was unfair for him not to have contact with the children; that he will keep trying and will not give up; he seeks to maintain parental responsibility and will be able to carry on seeking contact with the children. The spectre of such applications will undermine the security of the placement that is so essential to the children’s future stability.

(4) Bearing in mind the background to the criminal offences the maternal family fear manipulation by the father, directly or indirectly, so that he could control the children’s lives. In the circumstances of this case that fear is very real due to the background of the father’s behaviour, and is confirmed by the papers in the court bundle from the criminal proceedings. In particular the psychiatric report, the pre-sentence report and the sentencing remarks from the Crown Court. He was described in the pre sentence report as being extremely controlling and highly dangerous. From what I have read I wholly agree with that description. I am satisfied that a special guardianship order, even supported with orders made under s 8 and 91 (14) CA 1989 severely controlling the father’s ability to exercise his parental responsibility, will not, in the circumstances of this case, provide the lifelong security that these children need in being securely placed with their grandmother.

(5) The grandmother has carefully considered the consequences of adoption and the lifelong nature of adoption. They have been explained to her by the senior practitioner from the adoption team, as set out in detail in the special guardianship report. She understands the change to the children’s birth certificate would mean that the mother’s name and details would be removed. She does not plan to change the children’s names.

(6) In her most recent statement the grandmother deals with the religious objections raised by the father to an adoption order. She sets out very clearly how she sees the adoption of the children by her in the circumstances of this case (where she does not intend to change the names, and where any limited inheritance consequences can be covered by putting arrangements in place). She is satisfied, in the circumstances of this case, with the arrangements that would be put in place by her, that adoption is acceptable under Islamic law. I agree. This is endorsed by the Children’s Guardian, who says he is confident the family can manage this with sensitivity and support.

(7) I agree with the recommendation of the Children’s Guardian that permanence and long term safeguarding for the children can only be guaranteed through the making of an adoption order. For the reasons outlined above it is the order that best meets their long term welfare needs.
In those circumstances, I will dispense with the father’s consent as the welfare needs of each of the children, in my judgment, demand I do so.

The Court was very critical of the Local Authority, who had been directed to file a section 37 report and did so very very late  – 3 ½ months late (despite the circumstances of the case being one that an outsider might imagine that the LA would take seriously)

I imagine that this sentence may crop up in submissions in family law cases (in combination with the recent decision of Mr Justice Cobb that a Local Authority can be hit for costs when failing to undertake a proper s37 report)

I am quite satisfied the obligation is on the party seeking an extension of time to apply for one (in the absence of any other direction being given by the court). The court had made an order and the expectation is that it will be complied with.

(i.e, don’t just submit the report late, seek permission of the Court to do so in advance of the report being late. )

But then this bit is particularly important for Local Authorities

35.  I wholly endorse the guidance given by Mrs Justice Hogg in Re A and B [2010] EWHC 3824 (Fam) in particular paragraph 2 which provides

The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority’s legal department.”

And this bit from the same case is important too

 In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority

My initial thought was that it might not be utterly straightforward to establish that the threshold criteria was made out, and I had quite a long rambling discussion about that, which I can spare you all from.

The other reported case of Re A and B 2010  http://www.familylawweek.co.uk/site.aspx?i=ed82613  initially did not seem to help, as the threshold was dealt with by this single line

All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother’s death at the hands of their father.

But the High Court later go on to say :-

Threshold
1. In all cases where one parent has been killed by the other the threshold criteria will be met.

And thus, no further enquiry into the nature of the harm is needed. One does not need to explore how that harm is said to have manifested or would need to be evidenced. I can’t actually think of any other situation where threshold is so black and white – there’s no mitigation, no case specific issues, threshold is simply met in those circumstances.

(That of course, inadvertently means that a parent who kills the other in self-defence, perhaps during a violent assault by the other, has crossed the threshold and has significantly harmed the child; but crossing the threshold does not of course mean that the children would be removed. What about where one parent is driving, perhaps drunk and the passenger is killed? The surviving parent might well be charged with Causing Death by Dangerous Driving – it seems that the threshold would be crossed there as well)

Whilst one immediately thinks that it is one of the gravest offences that a human can commit and thus of course threshold is met, we know from many authorities, most recently Re J that being responsible or jointly responsible for the death of a child does not mean that the threshold is met in relation to other children in the future.

Local Authorities would need to be alert to cases where a parent murders the other, to ensure that they seize themselves of the matter and provide services and support to help meet the children’s needs at this dreadful time.

Laying down a marker – the Court of Appeal speaks on analysis of welfare checklist

As regular readers will know, we had been anticipating the Court of Appeal in Re B S  to deal with issues of how appellant Courts were to tackle appeals in the light of the changes to the tests highlighted by the Supreme Court in Re B.

We hadn’t necessarily anticipated that the Court of Appeal would get under the bonnet of this issue before then, but to an extent, they have, in Re G (A child) 2013. The case really delves very carefully into an often overlooked aspect of the judicial decision-making – the welfare checklist.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/965.html

The facts of the original case , determined by a District Judge (which was appealed, and then that appeal decision appealed to the Court of Appeal) aren’t really that important.

What is important is the Court of Appeal’s clear guidance as to how Judges in care proceedings are to tackle the task.

In broad terms, this is the order of events

  1. The Court must establish the facts and particularly to make findings on any relevant facts or disputed facts
  2. The Court must then evaluate whether on the basis of those facts, the section 31 threshold is crossed
  3. The Court should then apply the welfare checklist to the circumstances of the case
  4. If the case involves a plan of adoption, the Court should also apply the welfare checklist as set out in the Adoption and Children Act 2002 to the circumstances of the case
  5. The Court should then consider proportionality when determining what order to make, and in an adoption case must specifically address the formulation set down by the Supreme Court in Re B  (in essence that ‘nothing else will do’

Nothing within that sequence of events is at all controversial or new. What might be new is the Court of Appeal’s focus on the welfare checklist and how that exercise must be approached judicially, and by any appellant Court looking at whether the exercise was approached.

In particular whether the approach of dealing with the welfare checklist in a linear way – by looking at the merits of the parents case against the welfare checklist and then only at point (g) range of powers available to the Court mapping out the pros and cons of the various options, is in fact the wrong way to go about things.

  1. The wording of certain elements of the welfare checklist must, I would suggest, involve a direct comparison of the relevant options that are being considered, for example:

(c) the likely effect on him of any change in his circumstances;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.

  1. Under s 1(3)(c), consideration of the effect of any change in the child’s circumstances must involve considering, in the present case, not just the prospect of returning to the mother’s care but must include consideration of the effects, positive and negative, of placement in long-term foster care. Under s 1(3)(e), consideration of the risk of harm obviously will include the potential for future harm from parental care, but must also require evaluation of any risk of harm from the alternative option provided by ‘any other person’, namely the local authority as corporate parent, for example emotional harm as a result of long-term separation of a child from his parent. Under s 1(3)(f), when considering how capable ‘each of his parents, and any other person’ are to meet the child’s needs, again I would suggest that, alongside consideration of the parent’s capacity, there is a need to look at the strengths and detriments in the local authority’s capacity to meet his needs through long-term fostering.

 

What the Court of Appeal are saying here is that the Court must not simply look at the case for the child remaining with the parent, analyse this, and then if determining that this is not possible, move on to considering what type of order would be appropriate.  The Court cannot properly decide whether the child should be with a parent based on the pluses and minuses of THAT option, but must weigh into the balance the pluses and minuses of the OTHER options.

It is not, as they say, a linear exercise, but one of laying out the various options and comparing them alongside one another. When considering, for example, the ‘capacity of the parent or any other person to meet his needs’ the Court must not only look at what the parent could offer under no order or a Supervision Order, but what the Local Authority could offer (including any deficiencies) under a Care Order or Placement Order.

The structure of the welfare checklist, culminating as it does with the “range of powers available to the Court” seems to tempt the Court into approaching that comparison of the various orders only at that stage, but this would be the wrong approach.

They develop this further – underlining mine

  1. In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
  1. The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.
  1. One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach. The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at ‘rehabilitation to a parent’ as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable. I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child’s welfare at the end of which one of a range of options has to be chosen.

And later

  1. A further concern about the linear model is that a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.
  1. In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge’s judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

I think those words about “formulaic window dressing” are apt – and are similar in nature to the reinforcement of the Supreme Court in Re B that the Court have to genuinely look at and tackle proportionality and human rights, rather than just the stock phrases of ‘the interference with article 8 is proportionate and necessary in this case to safeguard the child’ without looking behind that stock phrase into what is genuinely meant and intended.  When the term ‘draconian’ is thrown about the Court room, which it is, and often– if one were somehow able to calculate all of the occasions when the word ‘draconian’ was uttered I think 85% or more would be in the Family Court;  it isn’t sufficient just to say the word, those present must feel the weight of what that word really means.

It becomes clear then, that the role of a Court in determining any application for public law orders is to get heavily stuck into the Welfare Checklist. The culture that has sprung up over years of the Welfare Checklist largely being extracted from the social worker’s statement with perhaps a few corrections or additions here or there, is unlikely, in the light of Re G to be sufficient.

This must be an comparative exercise balancing each of the options open to the Court and weighing them each against the other. It would be fair to say that most Welfare Checklists I have seen have been constructed more on the linear model, where one starts with an assumption that the child should be placed with the parents and analyses whether or not that is possible, rather than following each of the options through each stage and weighing each against the other. The weighing process, if any, tends to happen at the very end of the Welfare Checklist once the linear process has been undertaken (resulting in either ‘Yes, child can be with the parent’ or ‘no, the child can’t be with the parent’) when it comes to the Range of Powers available to the Court and positing which orders are appropriate on the basis of the linear process having ruled in or ruled out the child being with a parent.

Re G makes the Welfare Checklist even more important than it is at present, at the very time of course, that the PLO standardised documents take it out as a flowing self-contained part of the social work evidence and it vanished from Guardian’s reports long ago in all but very rare cases. Judges will now have to fish around in the social work statement for the social work analysis of the welfare checklist, scattered as it now is throughout the document rather than residing in one defined section.

As the Court of Appeal say in this case about the two Judges whose decisions were the subject of this appeal (underlining mine again)

Before moving on, I would like to acknowledge the strong professional sympathy that I feel for DJ               and HHJ                          who find themselves in the invidious position of having their judgments subjected to scrutiny by the Court of Appeal armed, as it always is, with 20/20 hindsight but, on this occasion, also armed with a strong decision from the Supreme Court that has been injected into the mix between their respective involvements in the case and this judgment. I wish to stress that the observations that now follow are made in this case because it provides the opportunity to do so, and not because there is anything in these two judgments which is worthy of additional individual criticism. My working life is now spent very largely in reading first instance, and less frequently, first level appeal judgments. The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in Re B. I therefore hope that DJ              and HHJ                      will be stoic and may see their judgments in this case as being the unwitting launch vehicles for what now follows, rather than its specific target.

I suspect that in the immediate future, advocates will be particularly alert during the passages of a judgment that deal with the welfare checklist, because the cursory race through it, or  formulation of “I adopt the welfare checklist as set out in the social work final evidence” will not be sufficient.

(Moving on from this, one MIGHT conclude that in order for Judges to properly and thoroughly analyse the weaknesses of the care that the State can provide for any particular child, some proper independent, neutral, rigorous and up to date research on delay, breakdown rates, abuse in State care,  the factors that are indicative of a successful or poor prognosis for children in State care or adoptive placements, children’s thoughts and feelings about being cared for by the State, how issues of loss endure or resolve for these children and outcomes for children in State care would be both extremely helpful and long overdue.  Otherwise there is a risk that the information is either overly rose-tinted or overly negative depending on who is providing it to the Judge)

It’s as plainly wrong as the nose on your face

In family cases now, is the appeal test “plainly wrong”  or “wrong?”  – Court of Appeal to grapple with this issue.

I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.

I didn’t think it might happen so quickly.

In Re BS (Children) 2013,  Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.

http://www.familylawweek.co.uk/site.aspx?i=ed114967

In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”

The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.

You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.

Or at least, it wasn’t.

The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.

Here’s what MacFarlane LJ said in the permission judgment

17. The short description of the matters I have in mind are as follows.  Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test.  The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”.  Then later in the next page of the judgment, she said again, “2nd and 3rd test have to be looked at together”.  I consider it is arguable that that displays an erroneous understanding of the test.  My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing.  That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

18. The second reason for granting permission to appeal arises from Re B.  First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption.  Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court.  In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable.  Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged.  Those are the very circumstances that trigger the jurisdiction under section 47(5).

19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties.  Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged.  Arguably such a review is, in my opinion, justified on the facts of this case.

21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose.  Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”.  There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”.  That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold

They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .

The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’)  and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met

(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)

44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.

 

 

Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B  (cough, cough), the effect of that passage is fourfold

  1. Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.
  1. As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”
  1. The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong)  and one where they are not (where they just have to be wrong)
  1. Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.

For what it is worth, my own view is that on the Re B  “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.

Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view”  and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).

I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.

But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.

I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’

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