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Nothing else will do – Court of Appeal clarification

We have been waiting a year for something like this, so this is quite a swift post pointing you to it and giving you the relevant quotations.

I wrote a piece for Jordans a long while ago, saying that whilst the “nothing else will do” test appears at first glance to be simple common sense English, there are a number of possibilities for what it actually really means

 

http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word

For example, which of these following definitions of ‘nothing else will do’ is actually right?

(1) There is genuinely, literally, no other option that could be conceived of.
(2) The other options available are appreciably worse for the child than adoption would be.
(3) There are other options, but they require a degree of intervention by the state (ie the local authority) that they would in effect be unworkable.
(4) There are other options, but they require a degree of intervention by the state that the state says is disproportionat (at some stage, the R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 decision is going to come into play).
(5) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 26-week PLO timetable.
(6) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 8-week extension to the 26-week PLO timetable that is permissible in ‘exceptional’ circumstances.
(7) There are other options, but in order to make use of them, the court would be extending the decision-making process to a point where the delay would be harmful for the child and the harm can not be justified [that is really where we have historically been].
(8) Any of the other options would cause harm to the child or carry with it a significant risk of harm to the child, and weighing up the options, adoption is the least harmful of all of the options available.
(9) Another one/ten that I have not thought of yet.

 

 

[I do sincerely apologise for quoting myself, and don't mean to do so in a Presidential manner, it is just that I knew I'd already written somewhere else exactly what I wanted to say here, and it seemed crackers to rewrite it from scratch]

 

So, which of those is it? Do the Court of Appeal finally help?

 

Re M-H (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1396.html

 

It involves an appeal from my own Designated Family Judge, so I’m rather relieved that her decision was upheld (otherwise it is slightly awkward to write about) but not my own Local Authority.

 

The appeal was brought largely on the claim that the Judge at first instance had applied the wrong test for the making of a Placement Order.

 

This is what the Court of Appeal say  (underlining as ever, mine for emphasis)

 

  1. The ‘correct test’ that must be applied in any case in which a court is asked to dispense with a parent’s consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children) [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and rehearsed previous jurisprudence on the point. The “message” is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
  2. However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.
  3. It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of “nothing else will do” automatically bites.
  4. It couldn’t possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that ‘something else would do at a push’, the exact counterpoint of a literal interpretation of “nothing else will do”, and it would follow that the application would therefore fail at the outset.
  5. The “holistic” balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child’s welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that “nothing else will do”. All will depend upon the judge’s assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.

 

Boiling that down – it does not mean that there are literally no other credible options, nor does it mean that there are no other credible options which offer benefits. It means really that the Judge must choose the right option for the child’s needs but have in mind that if the child’s needs can be met by a less drastic order that should be preferred to adoption.

 

And that if a Judge is going to make a Placement Order, the judgment will need to set out the other options, assess their credibility and explain why they have not been followed.

 

It is really about judgments being rigorous and robust and analysing the pros and cons – I think for the last nine months we have all been swept along on replacing one set of stock judicial window-dressing phrases for another, that as long as the phrase “nothing else will do” peppers the case and the documents and the judgment that will suffice.  The real message of Re B-S for me, was that the options have to be set out with proper rigour as to what they would mean for the real child in the real case.

With the profoundest respect

 

Firstly, apologies. I know that to lawyers, using that title is the equivalent of me going into a Wetherspoons pub, finding the drunkest person there, giving them a lot of amphetamines and telling them that (a) you were the person who stole their wife back in 1984 and (b) that they should go around your house and shout what they think of you through your letterbox.

 

Non-lawyers may not be aware of the lawyer code which is “with respect” = You absolute moron, you’re wrong.  “with great respect”  = ffs do you have anything between your ears, you are utterly wrong , “with the greatest possible respect”  –  I am going to have to get Malcolm Tucker to concoct a sentence which truly construes how annoyed I am with you and how wrong you are.  I honestly didn’t even know it went up as high as “with the profoundest respect”

 

So why am I dropping the P-R bomb on y’all?  Well, because that phrase appears in a judgment, and it is used by a High Court Judge, and he is using it about the Court of Appeal.

 

The Judge is Mostyn J (who has had a busy autumn), and the case is Re D 2014  http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

 

I wrote about Mostyn’s initial decision here http://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

I’ve written about the particular Court of Appeal decision here (and you can see that I may have been somewhat bored by it, because a lot of it ends up being co-written by Snoop Doggy Dogg – apposite given post 500)

http://suesspiciousminds.com/2014/02/21/and-i-aint-talking-bout-chicken-and-gravy/

 

The gist of it, very quickly.

The father in the case was found to present a massive risk to children. I don’t think anyone (even Ian from Forced Adoption) could dispute that he would be a bad person to be around children. The real meat of the case was whether mother could separate from him and stay away from him.

The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

Care proceedings, mum and dad were both Czech, and had gone back to live in the Czech Republic. The baby was in care in England and the care plan of the Local Authority, shared by the Guardian was for adoption.  Mostyn J had to decide a Brussels II application, and in doing so, he raised an important philosophical question – if the outcome of the case would be radically different in another country (because England has non-consensual / forced adoption and the Czech Republic does not) should that be taken into account? Mostyn J did take it into account and decided that the case (and future of the child) ought to be transferred to the Czech Republic.

 

That was appealed, and the Court of Appeal in Re M (A child) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html decided that Mostyn J was wrong, that you decide Brussels II on the facts of the case and you give no regard at all to how another jurisdiction might decide the case.

Here are the 3 questions to be answered

” … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

 

 

So they told Mostyn J that the English Court would decide the case, overturned his decision and sent it back to him for determination.

 

I have never had the experience of going back into a case where the Court of Appeal have told the Judge he was wrong and then gave him the case back – it must be a somewhat trying situation. We now see from Re D, just how exasperating a Judge might find that experience.

 

[In the interests of fairness, I'll throw my hat in the ring - I think Mostyn J first time got the right decision for the wrong reasons, and I think that the Court of Appeal had the right reasoning but reached the wrong decision, so I can see why there's some rancour there.  ]

 

What follows is all genuinely from Re D (at least all the stuff in bold – a Judge thought of this, wrote it down and published it. For real – underlining is by me, for emphasis)

 

 

  • The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.
  • It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.
  • In my defence I would say this:

 

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal’s perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

 

 

The technology all broke down (I have sad real-life experience of how awful it can be to be involved in video-link evidence overseas, and it is like the course of true love in that it never runs smoothly)

 

The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

 

 

  • In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

 

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

 

 

The Judge discusses the expert witnesses from the Czech Republic who gave evidence via this flawed video-link. When you see that one of them said in writing that the mother could ‘definitely’ protect the child, you might have your antennae for “you’re going to collapse in cross-exam” twitching, and you’d be right

 

 

  • The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

 

“From a position of a psychotherapist working with the family, I can respond within my competence as follows:

Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children.

At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child.

As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother.

In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions.

Recommendation:

I recommend ED to be returned to his parents.

If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents.

I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care.

This opinion has been given on request of the High Court in London, England.”

 

  • In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.
  • Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined:

 

“For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.”

 

 

The Judge weighed up the evidence very carefully and rejected the proposals made by both sides (the mother seeking return of the child, the LA and Guardian seeking adoption)

 

 

  • These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.
  • I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated:

 

“It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

 

  • In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

 

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

 

  • The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.
  • Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

 

[You may remember the Court of Appeal case I recently discussed where the foster carers WERE putting themselves forward and the Court of Appeal said the Judge was not wrong to reject them - here they weren't, but the Judge was trying to persuade them to do so]

 

I think that this is an important case – not for setting precedent – this won’t be relied upon in other cases and if it was attempted to be, I am confident that the Court of Appeal would have little hestitation in correcting Mostyn’s views here. But it frames an important philosophical debate – do the Court of Appeal really mean ‘nothing else will do”  – or do they mean “the other options must be considered and if adoption is the decision the Court must explain why they have been rejected”  – and Mostyn J raises the other major issue – are WE right in allowing forced adoption (together with two other countries in the EU, or are the other 25 countries right to have rejected it?

How long will it be before this is litigated, at length in the ECHR?  Y v UK set down the marker that Re B  and then Re B-S followed  [some observers, myself included think that 'nothing else will do' was an attempt to get English adoption law back in line with the ECHR view of it], but has there actually been a sea-change in the sort of cases that warrant adoption or have we all just swapped one set of ‘judicial window-dressing’  (draconian order) for a fresher one ‘nothing else will do’ ?

 

I have to say that it feels sometimes on the ground that we have just swapped our incantations for a newer form of words, rather than the radical re-think on adoption that Re B-S looked like a year ago.

 

What was Mostyn J’s plan if the current carers did not offer themselves up as Special Guardians? Well, here’s where it gets interesting. And remember, the Court of Appeal had said no to transferring this case to the Czech Republic under Brussels II.

 

If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

 

I.e, I’ll make a wardship order and place the children in foster care in the Czech Republic.

 

The LA and Guardian expressed some doubts on that, given that the agencies of the Czech Republic had been leaning more towards rehab to mother’s care.

 

 

  • If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.
  • In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.
  • I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

 

So, to suggest that the Czech authorities might return the child to mother’s care is highly chauvinistic and almost neo-colonial…

 

Let’s see what the Czech authorities had to say (AFTER the judgment was handed down. Again underlining mine for emphasis)

 

 

  • On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

 

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the Council Regulation (EC) No 2201 /2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 hereby states its position regarding the case of the child mentioned above.According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care.

As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland.

Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter “ECHR’) in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that “the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective ‘necessity’ for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with the child” (T v FINLAND, § 173)

Furthermore, the ECHR declared that “although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective ‘respect’ for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited” (KUTZNER v. GERMANY. § 61).

Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met.

Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation.

In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable.

This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

 

I might be highly chauvinistic and almost neo-colonial, but I read that as the Czech authorities dropping a pretty big hint that if the child is in their control, they view foster care as the last resort and a very extreme measure.

 

Now, one could of course argue – this is a Czech mother, a Czech father, a Czech baby – let the Czech Republic get on with it and make their own decisions, it is really their baby to make decisions about.  Except… that’s exactly what Mostyn J decided first time out and the Court of Appeal rejected that.

 

We don’t know yet what has actually happened. Here is my guess – either the LA and the Guardian began drawing up an appeal claim straight away OR a lot of pressure was put on the current foster carers to take up the offer of Special Guardianship to avoid further ligitation.

 

I’m not a huge fan of how Mostyn J has necessarily gone about this, but it is a real practical issue on the ground – we are having more and more babies in England and Wales whose parents are from other parts of the EU, those countries being ones who don’t have non-consensual adoption – should we be spending huge amounts of taxpayers money litigating these cases in England, or should the decisions about the children be taken in the parents country of origin?   (It gets ludicrously tricky if mum and dad are from different countries within the EU, of course)

 

The ECHR’s already tough line on non-consensual adoption was in a case where the UK was making decisions about the children of its own citizens – might they take an even tougher line when the first case of a foreign national’s children goes before the ECHR?  The Italian C-section case drew a lot of overseas attention – and if we have 3 countries within the EU who support non-consensual adoption and 25 who don’t, the UK government may not be preaching to the converted if a case of that kind comes up before the ECHR.

 

 

Permission : Impossible

 

(I asked the Court of Appeal to give me a permission judgment, so I could use this title, and they delivered the same day I asked.)

Re G (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1365.html

This was an application for permission by the mother to appeal out of time in relation to the making of a Care Order and Placement Order.

Those orders had been made as a result of overwhelming and unanimous medical evidence that the child had suffered a brain injury deliberately inflicted (it’s a classic ‘shaking injury’ case)

The orders had been made in September 2013, and the appeal itself was heard in September 2014, so clearly out of time.

The interesting wrinkle was that the mother was seeking to rely on ‘fresh evidence’ – her case was that she had learned after the final hearing that an infection that she had had was steptoccocal in nature, and thus might have been passed on to the baby in the birth canal – and thus that the ‘injuries’ to the child might have been as a result of organic causes rather than injury.

The mother obtained a report from Dr Wayney Squier dated 28th April 2014.

(The Court of Appeal descend into quite a bit of detail on her credentials and whether Dr Squier ought to have disclosed within her report that she was up before a Fitness to Practice Panel in relation to allegations about her doing expert reports that she wasn’t qualified to do. I’m not going to go into any of that, because I obviously don’t know the outcome of the Panel – Dr Squier might very well have been utterly exonerated / be utterly exonerated. And the Fitness to Practice Panel might drag on for months/years, so is she to lose her livelihood in the meantime?  Slightly different of course if the GMC suspend someone.  Let’s just say that the Court of Appeal tend to think that it was a material fact which OUGHT to have been communicated by the expert, rather than as here, everyone learning this when they heard it on the radio)

I have tried to track through the judgment, how that report came about. It clearly wasn’t ordered within the care proceedings. And it had not been ordered by the appeal courts. It emerges that an application had been made to the Judge who had decided the fact finding hearing and been granted. I’m not sure what the locus for that would be, given that there were no proceedings at that time. The purpose of the report was to see if there was a basis for appealing on fresh evidence – it was obtaining that fresh evidence.
The Court of Appeal were therefore looking at a number of issues

1. Could mother apply for an appeal out of time based on fresh evidence, asking the Court to re-open factual issues?
2. Did the Circuit Judge have jurisdiction to authorise the instruction of Dr Squier (or anyone) ?
3. If the appeal was to go ahead, would it be successful?

 

 

As indicated in paragraph 11 above, the single judge identified two procedural issues “for the consideration of the full court” namely (i) whether it was possible for the mother to apply to the first instance court to re-open factual issues; and (ii) what jurisdiction a county court judge had to grant permission to obtain and file a fresh expert report on the concluded factual issues in the context of an adjourned application for permission to oppose adoption.
Miss Bazley, Mr MacDonald and Miss Hurworth have provided full written submissions supported by numerous authorities and statutory provisions in relation to each. However, we have resisted the opportunity to hear oral submissions, the outcome of any deliberation on these points being superfluous to the merits of the mother’s applications. Nevertheless, Miss Bazley invites the court to give its views on the questions posed, albeit obiter, for future reference if necessary.
Clearly more detailed examination of these issues may be called for in the future when any alleged procedural irregularity potentially taints the ‘fresh evidence’ that may otherwise be admitted. In those circumstances the arguments can be more readily appraised when specifically addressed to the point in context. This court recognised the existence of Dr Squier’s report without condoning the procedure adopted by HHJ Roberts in relation to it. The mother’s position was not thereby prejudiced; quite the contrary.
However, I am content to provide my provisional view in relation to cases in which a sealed order follows on from findings of fact which subsequently become subject to challenge such as here in the light of the judgment in Re L and B (Children) [2013] UKSC 8. Lady Hale’s judgment makes clear that challenge after sealed order must be in the appellate court arena. See paragraphs 16 and 19, and particularly her response to a submission that the order should not be an automatic cut off to re-visitation of the facts in paragraph 42.
In the light of this high authority my answer to the first question posed by the single judge would therefore be: if a final order has been sealed, no.
I would regard the answer to the second point to be informed by that to the first in so far as it relates to a report containing contrary medical opinion. It follows that if there is no jurisdiction to re-open the findings of fact once an order is sealed then the court has no jurisdiction to permit expert evidence on the point since FPR 25.4(3) provides that the Court may only give permission to adduce expert evidence if “the court is of the opinion that the expert evidence is necessary to assist the court to resolve proceedings.” This provision must surely refer to extant proceedings within the court’s own jurisdiction and not prospective applications to appeal. The existence of a contrary expert opinion cannot establish a “change of circumstances”, absent re determination of the issue, and therefore cannot inform the necessary welfare assessment of the child in an application for leave pursuant to section 47(5) of the 2002 Act.
My answer to the second question posed by the single judge would therefore be: none.

 

 

Once the order has been sealed, any challenge to it must be by way of appeal not to the Judge who made it. And thus, any directions or decisions in relation to the preparation and presentation of that appeal have to be made by the appellate Court, and NOT the Court that decided the original case.
The Court of Appeal also give some helpful guidance in relation to ‘fresh evidence’ appeals generally (these are cases where the appellant is saying not that the judgment as it was made at the time was wrong, but that in the light of new information we can now see that it was wrong)
They correct any misunderstanding that people may have had following Webster that in cases involving children there’s a greater leeway to admit fresh evidence.

The jurisprudence concerning the reception of “fresh evidence” by an appellate court is well versed. The discretion to admit fresh evidence is provided by CPR 52.11 to be exercised in accordance with the overriding objective of CPR 1.1. Nevertheless, LADD v MARSHALL [1954] 1 WLR 1489 remains powerful persuasive authority; the criteria identified therein effectively covering all relevant considerations to which the court must have regard.
Mr MacDonald directed his written and oral submissions in support of his application to admit fresh evidence to addressing the principles in Ladd v Marshall but reminded the court of Wall LJ’s judgment in WEBSTER V NORFOLK COUNTY COUNCIL [2009] EWCA Civ 59, with which Moore-Bick and Wilson LJJ agreed, to the effect that it “was generally accepted that in cases relating to children, the rules it lays down are less strictly applied.”
For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.
Clicking on the Ladd v Marshall link http://www.bailii.org/ew/cases/EWCA/Civ/1954/1.html

I see that it is a case where Lord Justice Denning gave one of the judgments, so it is going to be worth a read.

Ladd v Marshall involves an alleged sale of land, where the money was allegedly paid in cash. The seller of the land (Marshall) pulled out of the deal, and denied ever having received the money. At the civil trial, the seller’s wife gave some very limited evidence, basically keeping schtum.

However, in her later divorce proceedings, she included in her petition that her husband had made her not tell the truth in the civil trial.

Ladd got wind of this and wanted to appeal the original court’s decision that there had not been a sale of the land, because Marshall’s wife was indicating that if she had been able to give honest evidence she would have said that she witnessed Ladd giving Marshall the money.

With me?

In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible
The Court of Appeal in that case felt that those three facts were problematic in this case – Mrs Marshall was claiming that she had lied in Court proceedings, so her credibility was at least questionable.
Putting the test into a nutshell – it has to be evidence that could not have been reasonably obtained at the time, the fresh evidence has to be evidence that would be presumed to be true (i.e not controversial) and also evidence that if it had been known would have been conclusive.
Going back to our case of Re G – Dr Squier’s report didn’t fit any of those categories – it fails all three tests. It at best, cast some doubt upon the other medical evidence but was an opinion that would have been open to challenge rather than being presumed to be true, and also that would not have been conclusive. It barely touches the ‘new’ aspect, and the Court of Appeal doubted that the infection issue was “new” rather than just had been overlooked at the time.

the further evidence of Dr Squier fell to be considered in two parts: that relating to the possible consequences of the mother’s streptococcal infection, and that relating to the “wider” consideration of possible causes of H’s condition on arrival at the hospital. As to the first part, Dr Squier professes no relevant expertise and offers only the most banal observation. Even if one were to accept (which I do not) that this evidence could not with reasonable diligence have been obtained for the fact finding hearing, it is not realistic to suggest that it could have had an influence on its outcome.
As to the second part of Dr Squier’s report, it is notable that all the references cited in support of her views pre-dated the fact finding hearing. Mr MacDonald accepted that Dr Squier’s opinions, which she bases on these references, were “out there” at the date of the hearing. In a case concerning the welfare of a child this might not in all cases be a sufficient basis to reject an application to admit further evidence. But as Macur LJ has explained, this is not a case where it can be said that the alternative explanation was overlooked. Moreover, as Ms Bazley demonstrated to my satisfaction, there are, to put it at its lowest, serious grounds for supposing that the alternative explanation proffered by Dr Squier, is founded on an insecure scientific basis. For those combined reasons it is therefore not possible to say that, if admitted, the further evidence would be likely to have an influence on the outcome.
and Lord Justice Briggs puts this in even more pithy terms
The first part was of no weight, while the second part amounted to no more than a different view from that of the jointly instructed experts who were unchallenged at trial, not based on any material which post-dated it. It cannot be a proper basis for the admission of fresh evidence that a party has, since the trial, merely found an expert with a different view. That was not of course the basis upon which Dr Squier was instructed, but the supposedly new possibility of infection turned out to be a matter upon which she could offer no useful opinion.
That bit rather reminded me of the apocryphal Samuel Johnson review

“sir, your manuscript is both good and original. Sadly, the parts that are good are not original, and the parts that are original are not good”

Court deciding of its own motion to remove a child into care

 

I’ve been writing more or less since I started this blog about my concerns regarding the power in section 37 of the Children Act 1989 for a Court to place a child in foster care of their own motion. (for non-lawyers, ‘of the Court’s own motion’ means that the Judge decides to do this himself or herself, rather than there being a formal application by the Local Authority.   There has been a lot of press attention on one young boy over the last week, but the Court of Appeal’s decision in Re K may have a considerable impact on a number of families. There’s a story here, if the Press care to tell it.

 

That power exists, that is beyond doubt. It is set out in section 37 of the Children Act 1989 that where a Court is dealing with a private law case (i.e two parents arguing about where a child should live or how much time the child should spend with either) they can direct that the Local Authority (social services) carry out an investigation and the Court can make an Interim Care Order for up to 8 weeks whilst waiting for that report.

 

Why does that matter?

 

Well, an Interim Care Order allows the child to be taken away from a parent and placed with another parent, or a relative or in care.

 

And why does it matter that the Court do it of its own motion rather than with the Local Authority applying?

 

Well, here are the protections you get if you are a parent, when the Local Authority apply for an Interim Care Order :-

 

(a) You get a period of notice – three days

(b) You get to see the Local Authority evidence – why should there be an Interim Care Order,

(c) Sometimes more importantly,what do they plan to do with it – the interim care plan

(d) You get FREE legal advice and representation

(e) The Court has to find that there are reasonable grounds to believe that the child has been harmed or would be likely to be harmed (the threshold criteria) and the reasons for this have to be set out in a 2 page document, that the parent can challenged

(f) There will be an independent Guardian, appointed to advise the Court on what is best for the child. They may challenge the social work view and have an alternative plan to put forward

(g) Finally and most importantly, the person who is asking for the application is NOT THE SAME PERSON as the one deciding whether to make the order.

 

With an Interim Care Order made under section 37 of the Children Act, these things do not necessarily happen. It might be that the parents have lawyers, but these days they probably don’t.  There might be a Guardian (but as we’re about to see, the wrong type of Guardian can be worse than not having one at all)

 

Re K (Children) 2014

 

This case, just decided in the Court of Appeal, doesn’t set out all of these concerns, but it is dealing with a case in which the making of Interim Care Orders under section 37 of the Act went badly wrong.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

I will put the killer line in first, because I don’t want this point to get lost

 

33. The judge had in her mind from the beginning of the hearing the jurisdiction of the family court to make an interim care order under section 38(1) CA 1989 where a section 37 report has been directed. The procedural protections of notice and an opportunity to be heard apply to a jurisdiction that is available to the court of its own motion just as much as they do to a jurisdiction invoked on a party’s application.

 

That is a big deal – the Court of Appeal have never said that before. Within the last couple of years, the Court of Appeal take on ICOs made under s37 has included:-

 

If the Local Authority report says no need for a further order, the Court can just tell them to write another one, and another one, and keep making Interim Care Orders until the Local Authority writes a report that the Judge agrees with

http://suesspiciousminds.com/2012/11/30/it-is-lawful-to-make-icos-under-repeated-s37-i-say-it-is-lawful-to-make-icos/

 

And that it was okay for the Local Authority to turn up at Court, pop in to see the Judge on their own and suggest this route and for the Judge to make an Interim Care Order under s37 even though the mother and her lawyer were AT Court and knew nothing about it

http://suesspiciousminds.com/2013/03/14/ex-parte-removal-by-the-back-door/

 

The Court of Appeal in this case also added that the law on removal is the same under s37 as when the Local Authority apply for it (again, the Court of Appeal have been weak on this in recent years)

 

35. The tests to be applied where a removal into public care is being considered by this route are: a) whether the court ‘is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)’ (the interim threshold as set out in section 38(2) CA 1989); b) whether the court is satisfied that the child’s safety demands immediate separation (see the authorities reviewed in Re L-A (Care: Chronic neglect) [2010] 1 FLR 80 CA); c) whether the court is satisfied that removal is in the best interests of the child (the welfare analysis required by sections 1 and 1(3) CA 1989; and d) having regard to a comparative welfare analysis of the options, whether the court is satisfied that removal is a proportionate interference with the child’s and other relevant persons’ article 8 ECHR rights

36.The interim threshold was satisfied by the determination made by the Recorder in his May judgment but that was not enough in itself to demonstrate an application of the other tests. The safety question described by Thorpe LJ in Re L-A was neither asked nor answered. It could not be because of the poor quality of the evidence before the court. In the absence of quality evidence on the point, not only was the safety issue not identified with sufficient clarity or particularity, but of necessity there could be no analysis of the evidence relating to it in order to conclude that a removal was justified.
 

37. Re L-A is the domestic legal test for the justification of removal that takes note of the Strasbourg jurisprudence i.e. the interference of the state in the article 8 rights of those involved in circumstances where there is an issue of safety. In order to identify the nature and extent of an alleged risk to the physical or emotional (psychological) safety of a child the court needs evidence relating to the prima facie facts. As has been explained by the President in Re G (Interim Care Order) [2011] 2 FLR 955, it is also necessary for the court to undertake a broad proportionality evaluation of the comparative welfare analysis of the options for each of the boys on the facts of the case to cross check whether a ‘more proportionate’ option than separation is available. That did not happen, but in fairness it could not happen, because those options were not identified and analysed in the evidence. The absence of this reasoning is fatal to the decision made in respect of A in this case.

 

So, yes, I think this is long, long overdue. If I were for a parent in private law proceedings and got a sniff of the Judge contemplating the atom-bomb answer of “If you two can’t sort it out, maybe the child should be put in care” you are going to want this authority to hand, and you are going to want to argue for three days notice.

 

Back to Re K

 

There were two children, one nearly 15 and one aged 12. The private law proceedings, as so often happens, had been emotionally fraught and acriminious. It was one of those cases where the children were saying that they didn’t want to see their father and there were doubts about whether that was a genuine belief or one instilled in them by their mother. The original Judge heard what was no doubt a very difficult case and decided to separate the children, one going to father, one going into care under an Interim Care Order made under s37 of the Act. The children had never been separated before.

 

No doubt because there was no agreement about how the removal and separation was to occur, a recovery order had to be made in accordance with section 34 of the Family Law Act 1986 and the removal happened late at night with the police in attendance. The circumstances were distressing to all involved, including at least one professional. B was so distressed that he evacuated his bladder and had to change his clothes. The removal was described by mother’s representatives as ‘violent’.

 

[This was not the first time, and sadly probably will not be the last time, that removal of children from a parent following a private law hearing has gone badly wrong]

The Court of Appeal upheld the appeal and decided that the Judge’s decision had been wrong. They were sympathetic as to how this had happened – the pressure of time to make a decision had caused everyone to rush into a decision without really taking everything into account that needed to be dealt with. It is a salutary lesson and the Court of Appeal treat it as such, that sometimes Judges need to step back from the time limits and pressures and say “This needs more time to consider”

The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone. If there is any lesson to be learned by everyone involved, it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do. I would suggest that the decision that was made in this case would not have been made in the way that it was had time been taken to reflect on the history, the implications for the boys, the options available and the patent need for further and better evidence.
 

This is one of those family cases that a family court judge instinctively knows will cause harm to the children involved whatever decision is made. With that in mind, the analysis that has to be undertaken must bring to bear an acute focus on the balance of welfare factors given the facts of the case. The children are highly enmeshed in their parents’ conflict and the order that Judge Marshall came to have to re-consider was expressly made with the words in mind of Wilson J. (as he then was) in Re M (Contact: Welfare Test) [1995] 1 FLR 274:
 

“Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b) of the CA 1989) is outweighed by the depth of harm, which, in the light inter alia of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order.”
An enduring solution to the problem that exists in a case like this depends upon a comprehensive welfare analysis derived out of specialist case management which identifies the problem with clarity, a well informed judicial strategy based on good practice and good quality evidence and a measure of good fortune. The building blocks for such a solution are rarely available in the context of an urgent safety enquiry i.e. in the heat of conflict and, as will appear from the circumstances of this case, it is not a dereliction of duty to stand back and take time to consider whether the building blocks exist. In this case, they did not.

 

As hinted earlier, the situation was compounded because being a private law case, the CAFCASS officer involved was very familiar with private law cases but had little or no experience in public law cases (i.e children being taken into care).  They also had an expert who proposed a strategy, but had no suggestions as to what to try when that strategy went wrong. There had been no Plan B

 

It might have been thought that the solution to the problem that had occurred would have been within the skill and expertise of the guardian and the expert who had recommended the strategy to date: sadly, it was not. As I have described, the expert had written to the court and the parties some time before the summer placement had broken down to say that the circumstances were beyond anything with which his clinical guidance could assist. That was surprising but in fairness there was also the issue of trust that had arisen because of the dual function that the expert had been expected to perform. The result was that the court lost the expert that it had previously decided was necessary. To add to that unfortunate circumstance, the guardian conceded during questions put by this court that she had no public law experience and that the good practice, research based options and/or evidential materials which should be the meat and drink of any public law Cafcass practitioner were not part of her skill and expertise.
 

The consequence has been, as she informed this court, that she has asked the family court for her functions to be transferred to another more experienced public law guardian i.e., as I understand it, an application for the termination of her appointment and her substitution by another guardian will be made before the next hearing. With the benefit of hindsight, the children’s guardian should have asked Cafcass management for assistance and that should of course have been disclosed to the court, leading to an application to the court to add another guardian (which is possible under the rules) or substitute guardians for the hearing before Judge Marshall.
 

It is not at all clear how much of this the judge knew. Some of it she could not have known because it was revealed to this court when it asked questions which had the benefit of hindsight. In any event, it would have needed a more detailed and nuanced hearing to establish that which is now known or identified as respects the problem to be solved.

 

The failure to properly plan was compounded because of course when the Judge makes their own decision to grant an Interim Care Order without an application, there is no interim care plan

 

38.It is almost an aside in this case to remark that even where the court has rightly decided to make an interim care order, it should as part of the process consider what in practice will happen to a child if the order is made i.e. the local authority’s proposals or their care plan if by then it exists. That is not the statutory obligation imposed on a family court by section 31(3A) CA 1989 because the requirements relating to a section 31A care plan do not by section 31A(5) apply to interim care orders. It is simply essential good practice to ascertain how the local authority that finds itself in this position is going to exercise its statutory responsibilities. That evidence is bound to be relevant to the welfare analysis and proportionality evaluation. I do not believe that in this case the divergence of professional view between the children’s guardian and the local authority social worker on the point was sufficiently investigated in evidence. It is perhaps sufficient to record that this court was told that if one includes respite, A has experienced three foster care placements already.
 

39. There were no formed proposals in this case because the local authority did not at the stage the order was made accept that an order should be made. This was not a case of a local authority being difficult. The only time available to the local authority to put together their proposals was the time during which the hearing was taking place where the local authority was not a party and its witness was not its decision maker. What was needed was more time for mature consideration. A plan, using that word in its non-technical sense, would of necessity have been skeletal and would probably not have extended beyond describing the means of recovery, the immediate placement into which A would go and the assessment or other planning process to decide what to do next. At the very least the court should have found time to give consideration to this question.

 

The fact that the Local Authority were present and were saying that there shouldn’t be an order ought to have given someone pause for thought. This course of action was always likely to go wrong.

 

The Court’s failure to consider the effect on the children of being separated from each other was also damning

 

I need not do more than state the obvious in a case of this nature. As young people who have experienced family courts, public care and relationship breakdown make very clear in, for example, the proceedings of the Young Peoples Board of the Family Justice Board, the separation of siblings can be one of the most traumatic elements of their experience, particularly where no provision is made for the sibling relationship to be maintained so as to safeguard their long term welfare into adulthood. Generalisations are dangerous, the intensity of sibling relationships can be very different and this court has not been taken to any of the research studies that consider this issue. However, it is sufficient to say that a sibling relationship is central to both the article 8 respect for family life which is engaged in a decision to make a public law order such as an interim care order and welfare, which by section 1 CA 1989 is the court’s paramount consideration when it ‘determines any question with respect to the upbringing of a child’. It will be a relevant factor in all or nearly all of the section 1(3) factors to which the court is required to have regard.
 

The absence of a value judgment soundly based in evidence about the effects on each of them of the separation of the boys was, in my judgment, almost as fundamental a flaw on the facts of this case as the failure to consider the safety issue and the proportionality of interference in relation to A. It went directly to the quality of the outcome of the court’s intervention for each of the boys.

 

The Judge met with the boys (in the proper way) but unfortunately her impression and observation of the boys leaked into her judgment  (Non-lawyers note, it is acceptable for a Judge to meet children for the purposes of explaining  who she is and what the Judge’s role is, and possibly for very very general chat, but not for the purpose of gaining evidence. We wait to see whether the Ministry of Justices proposal that children should routinely be able to meet Judges will change this, but that’s the current law)

 

The boys saw the judge but were told this was not an opportunity to discuss any issues in the case including their wishes and feelings. It is plain from the transcript of the discussion that they could not believe what they were hearing and the judge observed that ‘they were very concerned and very disappointed’. The judge in seeking to avoid a discussion about the evidence clearly felt unable to listen to them. She entered into a discussion about the inadvisability of the boys’ written communications that it is difficult to characterise as being other than an admonition. They boys left the process distressed and apparently even more convinced in their view that no-one was prepared to listen to them.
 

This case has not been about judges seeing young people. I shall return briefly to the wealth of material on that topic. The question which arose out of the discussion with the boys was whether, despite her best intentions, the judge inappropriately relied upon her impressions of the boys and what they said to her to come to conclusions in the case. Sadly, perhaps as an inevitable consequence of the charged emotions in this case, the judge made that error. There are a number of passages in her judgment where the problem is highlighted. I shall choose three:
 

“[26] The findings that I make on this evidence need to be considered in the context of the opportunity I had to meet with the boys this morning. The parties are aware that I felt that they are at the moment presenting as being rather out of control, not subject to parental influence or indeed able to set appropriate boundaries for themselves. I also formed the view that they had perhaps rather lost touch with reality in relation to what was going on and I do have a concern that they are rather immature and may somehow view this as some sort of fantasy adventure.
[…]
[24] […] My own experience this morning is that these children could exhibit considerable distress and yet were able to calm themselves very quickly and the word ‘histrionic’ was exactly the one which I would have used in relation to their behaviour that I observed.
[…]
[47] I was particularly struck by something that the Guardian said, which is that “it is almost like the children expect someone to put their arms around them and to say ‘do not do this anymore'”. Again that exactly resonated with my own assessment after seeing the children this morning. They are out of control. “
I need go no further than the recent judgment of this court in Re KP (A Child) [2014] EWCA Civ 554 for a comprehensive statement of the law that takes account of the Family Justice Council’s [FJC] April 2010 ‘Guidelines for Judges Meeting Children who are Subject to Family Proceedings’ [2010] 2 FLR 1872, the FJC’s Working Party December 2011 ‘Guidelines on Children Giving Evidence in Family Proceedings’ [2012] Fam Law 79 and the recent decision of the Supreme Court in the Matter of LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] 2 WLR 124. It remains an essential principle of the guidance and the relevant authorities that a meeting with a child is not for the purpose of gathering evidence. There is likewise an emphasis on the court hearing the voice of a child and of the court reminding itself that a child’s wishes and feelings may not be capable of being represented to the court by the adult parties. The court should ensure that the child’s access to justice is effective, whether that be through formal separate legal representation or the offices of a guardian, a family court advisor or a parent. Even where formal representation is appropriate there is a wide discretion in the court to determine the extent of a child’s participation.
 

I have regrettably come to the clear conclusion that the judge’s discussions with the boys strayed beyond reassurance, explanation and listening. It was certainly not the latter and to the extent that the boys needed it to be, the judge could and should have adopted the practice of listening, disclosing what was said and not placing reliance on it in her judgment. It is entirely possible to listen without gathering evidence. Where a process is intended to or as here inadvertently leads to evidence being gathered, including by very firm impressions and judicial assessments about the boys’ needs, wishes, feelings, behaviours and the risks which their own needs might occasion, then consideration should be given to whether that evidence should be gathered or considered by a suitable neutral person (an expert or a guardian who is not conflicted). In a case where the conflict that had arisen in this case does not exist, the children’s guardian could have been asked to sit in with the judge or read the transcript of the discussion to assess the material in context. A process needed to be agreed that permitted the evidence to be challenged without harming the boys themselves.
 

The judge’s reliance on her own assessments of the boys derived from her discussion with them was procedurally unfair and to the extent that her primary concern was that they were ‘out of control’ it dominated her thinking. That was a value judgment derived from evidence gathered by the judge in a discussion that was not intended for that purpose and which could not be effectively challenged by others.

 

 

Sadly, with a string of appeal points  being upheld, there was never any doubt that this appeal would succeed. I think the Court of Appeal were right to recognise that there are cases in which Judges are urged and feel that a decision has to be taken  (the politician’s syllogism – “Something must be done”  – “This is something” – “Therefore we must do this”   and that hard as it is to tell people that the decision needs more evidence, more analysis and more thought, with an unsatisfactory status quo remaining in the interim, sometimes that is the right thing for a Judge to do.   The Court of Appeal also remind the parents that the extent of their adult quarrel has been very damaging to their two children.

 

55.The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court.
56. The absence of a determination on the question of separate representation and the severe conflict that has arisen between the boys and their guardian and solicitor mean that I am persuaded that they have not been afforded access to justice. A separate representation application must be properly considered with evidence as soon as possible. I say to the boys who should be asked whether they wish to read this judgment, that the degree to which they may be harmed by being even further enmeshed in their parents’ conflict and inappropriately being involved in the decisions that have to be made by adults, will have to be balanced by the harm that is being done by their perception that no-one is listening to them. The conclusion of an application is by no means clear but whatever the conclusion is, it must provide for them to be listened to and to participate to an appropriate extent.
 

57.I return in conclusion to the boys’ parents. Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother’s approach has contributed to the damage that has been caused to the boys’ emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that.
 

58. The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court’s orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as ‘implacable hostility’ cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present.
 

59. Mothers, fathers or both are just as likely to be responsible for the precipitating circumstances in such a case which may be far removed from and are sometimes if not often, irrelevant to the conflict which endures. Such research as there is into available and workable solutions suggests either a) that there should be a careful analysis of the reasons for the conflict by fact finding to identify and assess risk to the children and sometimes to one or other of the adults and/or b) that if the reasons for the conflict do not present identifiable risks to the children or their carer and sometimes even if they do, a resolutions approach to the conflict can be adopted to try and resolve it by professional intervention such as individual or family therapy, external support from local authority children’s services or education and assistance from the various parenting programmes and activity directions that are now available under the CA 1989 or otherwise. Sometimes it is necessary to fundamentally alter a child’s arrangements by removing that child from the adverse influence and control of one parent by placing the child with the other parent and making a child arrangements order that has the effect of limiting the relationship with the harmful parent. In an extreme case (and I emphasise they are and should be rare) where the child is suffering significant harm or is likely to suffer significant harm, the court can intervene and exercise its ultimate protective function by removing the child from its parents and by placing the child into public care so that the local authority shares parental responsibility with the parents.
 

60. The removal of a child from the care of a parent whether by a transfer of living arrangements from one parent to another or by placing the child into public care is not and must never be a coercive or punitive measure. It is a protective step grounded in the best interest of the child concerned. In so far as there was a perception in this case that either the transfer of the conditional residence of the boys to their father by the Recorder or their subsequent removal from their mother was a punishment of the boys for their behaviour and for being unwilling to accept contact with their father, then that was inappropriate.
 

61, For a family to be facing the possibility of a wholesale change of living arrangements between parents because of the harm that one or both of the parents is causing is bad enough, for a family to face the removal of children into public care when they are both capable of caring for their children is, frankly, sad beyond measure. This is such a family. I say that without attributing any causative blame to one parent or the other in the sense of saying that one or other parent is responsible for the problem that now arises. That may or may not need to be determined by a fact finding exercise. This court does not yet know. Where the parents are to blame is that neither of them has facilitated a joint approach to the resolution of their conflict for the benefit of their children. It is time for this court to start saying that which is obvious. The family court is empowered to make decisions for parents who cannot make them for themselves but it cannot parent the children who are involved. When parents delegate their parental responsibility to the court to make a decision, that decision will be in the form of an order. The court cannot countenance its orders being ignored or flouted unless an appropriate and lawful agreement can otherwise be reached. That is not simply to preserve the authority of the court, it is to prevent continuing and worsening harm to the children concerned. Parents who come to court must do that which the court decides unless they agree they can do better and there is no court order that prevents that agreement.
In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.
One can only sympathise with any family court judge who is faced with such a case. There are no right answers but inevitably there are many wrong answers. To make it worse, in this case, the proceedings had to be re-allocated because of judicial indisposition so that the new judge came to the case without the detailed knowledge of the previous ten years of litigation. The hearing was said to be urgent so that, no doubt, all other judicial work stopped and the case took priority. It was said to be a case that needed an immediate order. Hindsight is a wonderful thing and the nearest a first instance family judge can get to it is to take time for reflection.

 

 

 

“I need not descend into detail”

 

So said the original trial judge in Re B (Children : Long Term Foster Care ) 2014

 

http://www.familylaw.co.uk/news_and_comment/re-b-children-long-term-foster-care-2014-ewca-civ-1172#.U_YJE2NuVjM

 

The Court of Appeal took the opposite view.

 

 

[That might be the shortest case summary I’ve ever written. Let me see if I can get it into a Tweetable format   “Re B – judge says less is more, Court of Appeal says 'fraid not”]

 

 

Some slight elaboration – there was a point in the case where the plan for the children was placement with mother probably under a Supervision Order – that was the case by the end of July 2013. But by the time of the final hearing (September 2013), the Local Authority plan was for the children to remain in long term foster care and be subject to Care Orders.

 

The Judge agreed with the LA and made Care Orders at the final hearing.

 

There are some odd nuggets in the case, not least being that the mother’s new boyfriend was using the name of his brother as an alias from time to time, only to find that his brother’s Certificate of Convictions was worse than his own, that either the children were brandishing knives at neighbours or cutting string off a tree branch, and so forth.

 

There simply wasn’t enough in the judgment to explain to the satisfaction of the Court of Appeal why that was the case (they sent it back for re-hearing, they weren’t necessarily saying that the Judge was WRONG, but that the judgment didn’t do sufficient to show whether he was right or wrong). See the underlined section in paragraph 66 for the pithy quotation that will be deployed in all cases (since in any case, one can always find at least one advocate who thinks that the case is ‘finely balanced’ and persists in saying so throughout. Sometimes, to be fair, that advocate is me…)

 

65.  Mr Hall submitted in his skeleton argument that when the new concerns arose in the summer of 2013, the case was finely balanced, and in oral submissions, he acknowledged that there was a mixed picture including extreme concern at times and at other times positive involvement and engagement by M. That is, in my view, an accurate description of the situation. Mr Hall’s submission was that the judge scrutinised the evidence sufficiently, made the required findings, took into account the positives in relation to M as well as the negatives, and carried out the necessary balancing exercise so was entitled to find that care orders should be made. Indeed, he said, proceedings could have been taken earlier. It was notable, however, that in seeking to support the judgment, Mr Hall was obliged to have regular recourse to the underlying reports and statements from which he sought to draw further material to justify the care orders. That this was necessary reinforced my overall conclusion that the judgement did not contain a sufficient review of the evidence that was available to the judge.

 

66…. The basis on which we allowed the appeal was that the judgment was flawed in its approach to the events which led to LA’s change of mind and was lacking in the detail that was required to substantiate the decision taken. The more finely balanced the decision in a case, the more exacting must be the judge’s approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination.

 

67…the judge’s treatment of the background history compounded the problems with his treatment of more recent events. Mr Hall submitted that the social work chronology revealed pervasive profound concerns about the children. For my part, I have no doubt that a study of the history had the capacity to contribute valuable material to the judge’s decision but, in my view, there was no alternative but to look at it in some detail because it was a mixed picture. There were significant problems but we also know that the case was periodically closed by social services following short interventions and that at times, assessments were complimentary about M and sympathetic to her as a victim of prolonged domestic violence. The threshold criteria agreed were far from detailed and could not be relied upon as sufficiently informative of the history. Accordingly, it was not sufficient for the judge to deal with that history (apart from domestic violence from F) in a single short paragraph (§7) summarising the themes and concluding with the observation, “I need not descend into detail”. In summarising things shortly in this way, the positives and negatives were lost and there was no picture of what was actually happening to the children.

 

[68] In short, this was a case which could only be resolved by a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment. I have great sympathy with the judge who was trying to reach a determination for the children with reasonable promptness, within the confines of a two day time estimate, and without much offered to him by way of direct evidence. I am conscious that he took trouble to reflect on his decision before giving judgment. However, I am afraid that, for the reasons I have set out, his determination cannot stand.

 

 

The thrust of Court of Appeal judgments over the last year, and this goes hand in hand with the transparency agenda, is that a person ought to be able to pick up and read a judgment and understand why the decisions were made, without rummaging around in the background material to try to plug the gaps. It needs to be spelled out.

 

That has consequences, not least time pressures on the judiciary. A day spent writing a judgment is a luxury in terms of workload, but a necessity now if it is to be fireproof for the Court of Appeal. Where are all these extra Judge days to be found?

[I can't leave para 67 without saying - well, of course the threshold criteria were far from detailed, that's because we're told to squish it into 2 pages. You will see more of this]

 

 

step-parent adoptions and nothing else will do

The Court of Appeal in Re P (a child) 2014 considered an appeal from a Judge who refused a step-parent adoption having applied the law (or at least the gloss on the law applied in the last year)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1174.html

 

Boiling it down to one question – does ‘nothing else will do’ apply to step-parent adoptions where the biological parent who is being ousted as the legal parent doesn’t consent?  Well, of course it does, one would immediately say. The whole thrust of Re B was about ‘non-consensual adoption’, that’s a  non-consensual adoption. And the whole hook of Re B was using the word ‘requires’ in the s52(1) (b) test  to carry with it a huge additional weight of proportionality and nothing else will do – running counter to the former President’s decision in  a previous  Re P that ‘require was a perfectly ordinary English word’  to import a meaning  that was much much more. (To be fair, that’s an additional amount of meaning taken directly from the ECHR decision of  Y v UK, which in effect was ‘the ECHR lets the UK persist in its weird ideas about adoption, but we only tolerate it if you take it bloody seriously’)

 

The legal test for dispensing with the father’s consent to make a step-parent adoption  (and these cases are almost always about fathers being cut out of children’s lives and legal relationship of fathers being severed – you just don’t get many stepmother adoptions) is s52(1) (b),  – the child’s welfare requires consent to be dispensed with.

 

So, of course, it must be ‘nothing else will do’.

 

And if it is “nothing else will do” then it is going to be spectacularly hard to demonstrate that for any proposed step-parent adoption  (not just that it would be better for the child to make the order but that there is literally no other solution – ie the status quo can’t remain for reasons which are hard to fathom, looking from the outside)

 

So, nothing else will do almost certainly kills off step-parent adoptions.

No, the Court of Appeal say otherwise.  (I will make it plain that I think this decision is wrong, but it’s the law, and we are stuck with it. I think it flies in the face of common sense, ignores the principle of least interventionist order and is particularly prejudicial to birth fathers)

 

Here is the Court of Appeal test for step-parent adoptions  (drawn from a 1999 ECHR case, Soderback v Sweden, which distinguished between State adoption and adoption within part of the biological family)

 

a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent ['Parent B'], and thereby make it more likely that adoption is a proportionate measure are:

i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;

ii) Where Parent B has had only infrequent or no contact with the child;

iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties have existed for a significant period.

 

Those all seem to me very good reasons for a step-father having PR, but why are they good reasons for making an adoption order and changing a step-father into a legal father, and changing the biological father into a person with no connection to the child whatsoever?

 

The Court of Appeal do say that where the biological father is involved and opposes, the position is that the adoption should be a rare event and that the case ought to be resolved by making private law orders instead (there’s the ability to grant a step-father PR, or Child Arrangement Order (residence), even a Special Guardianship Order – although that would be insane, because it would give the step-father the legal power to override the birth mother. That’s so crackers that… it will probably happen within the next year)

 

In so far as the earlier domestic cases to which I have made reference establish that, in the event of Parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders, that approach is entirely at one with the modern private law relating to children which seeks to determine aspects of the delivery of child-care and the discharge of parental responsibility either by parental agreement or by a child arrangements order under CA 1989, s 8.
 

The making of an adoption order is primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. Thorpe LJ’s words in Re PJ adhering to the aptness of earlier cautionary dicta, and reminding professionals of the need to be aware of the motives, emotions and possible unrealistic assumptions about any new family unit, remain as wise and sound as they were when uttered in 1998. In this manner, the approach of the domestic case law sits easily alongside that of the ECtHR in Söderbäck v Sweden

 

The earlier authorities on contested step parent adoptions thus still apply, despite their antiquity so here they are

 

In Re D (Adoption: Parent’s Consent) [1977] AC 602 the House of Lords gave consideration to a step-parent adoption application made by a mother and her new husband, which was opposed by the child’s father. Lord Wilberforce, at page 627, laid stress on three matters:
 

 

i) that under the statutory test for dispensing with parental consent, as it then was, the child’s welfare was only one consideration; the test being ‘reasonableness’ (Adoption Act 1958, s 7); 

ii) consent should only be dispensed with in rare and exceptional cases, and this was ‘all the more so in cases … where the adoption is desired by one natural parent and the other refuses consent';

iii) an adoption order, which is irrevocable, should not be used to deal with practical considerations concerning custody, care and control or access.
Dicta of the Court of Appeal (for example that of Bagnall J in Re B (Adoption by Parent) [1975] Fam 127 at page 146) endorsed the third of these points and indicated that, in the event of the other natural parent opposing a step-parent adoption, the court would strive to achieve an outcome by ordinary private law orders rather than adoption.

 

 

This is going to make the issue of service of the birth father a very critical issue. If the birth father has been served and doesn’t turn up, the Court will probably make the step parent adoption order if it can be shown that the current family unit is settled and happy and that the birth father’s role has been limited. If he does turn up, the Court will probably NOT make the order.  Thus, making sure that the birth parent has been served is vital, and of course the likelihood is that these applications will be made after mum and birth father have been estranged for some years and without the benefit of public funding.

 

Ruling on ‘the rule’

 

 
In which I ameliorate some of the pain of reading a Brussels II judgment by digressions into betrayal by the BBC, Tarzan wrestling an alligator, James Joyce and Tommy Steele…

The Court of Appeal in Re H (jurisdiction) 2014 were asked to determine whether the trial judge, Mr Justice Peter Jackson, had been wrong to consider that he was not bound by the old ‘rule’ that if two people had parental responsibility neither can unilaterally change child’s habitual residence to another country.

That ‘rule’ is what stops one parent legging it to Spain with the kids and then saying, “well if you want to go to Court about it, I’m afraid we’re all Spanish now, so you’ll have to do it in the Spanish Courts. And I know your Spanish doesn’t stretch further than Dos Cervaza por favor, so good luck with THAT, pal”

[Or at least, it doesn’t stop them doing the legging, but it historically meant that if the other parent hadn’t agreed, then the habitual residence of the children, and the right Court to hear the case in was going to be English]

In the trial itself, it had been argued that the changes to the test of ‘habitual residence’ had meant that this issue was one of a raft of factors rather than being finally determinative of habitual residence, and thus ‘the rule’ was dead.

At appeal, the other side argued that if ‘the rule’ was going to be abolished, then it needed to be done so explicitly, and in the absence of such an explicit abolition it was still good law and binding – thus Mr Justice Peter Jackson had been wrong in diverting from it.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1101.html

Frankly, if you are interested enough to care about the WHY, then you will love the Court of Appeal judgment and can read it all there, it is set out in paragraphs 19 to 37 (It just SEEMS like it is in paragraphs 19 to 64,912)

What you want is the answer, which is that ‘the rule’ is no more. It may be a part of the relevant factual matrix, but just because mum moves the children to Spain against dad’s wishes, doesn’t mean that the children can’t be habitually resident in Spain.
it was submitted to us that a parent’s ability to change their child’s habitual residence unilaterally will be limited by the inclusion of the purposes and intentions of the parents as one of the relevant factors in the factual determination of where a child is habitually resident (see Baroness Hale at §54(ii) of Re A and also at §23 of Re L). I accept that submission. Furthermore, as Baroness Hale said at §26 of Re L, the fact that the child’s residence is precarious (as it may well be where one parent has acted unilaterally) may prevent it from acquiring the necessary quality of stability for habitual residence. However, the fact that one parent neither wanted nor sanctioned the move will not inevitably prevent the child from becoming habitually resident somewhere. If that were the case, the ‘rule’ would be alive and well, albeit dressed up in the new clothes of parental intention as one of the factors in the court’s determination.

Given the Supreme Court’s clear emphasis that habitual residence is essentially a factual question and its distaste for subsidiary rules about it, and given that the parents’ purpose and intention in any event play a part in the factual enquiry, I would now consign the ‘rule’, whether it was truly a binding rule or whether it was just a well-established method of approaching cases, to history in favour of a factual enquiry tailored to the circumstances of the individual case.
The Court of Appeal also go on to say that Parens Patriae jurisdiction [inherent jurisdiction] has no place in these matters, and that the Court should use Article 10 of Brussels II forum conveniens even in a case where the other country is not in Europe. And if for some reason, you are interested in that, may I suggest that you open a window and get yourself some fresh air.

[but it is all at paras 38 to 54. I’m afraid that there is not a sentence there that I was able to read and make sense of first time out. Every single sentence was something of a wrestling match with language, where I had to deconstruct every single aspect and put it back together again to try to work out what was going on, much like Tarzan wrestling with an alligator in a black and white Johnny Weissmuller movie. I ran out of enthusiasm for that exercise at about para 40]

 

That is probably deeply annoying for anyone who does international law and child abduction cases, because this seems to me to be a double whammy of

1. We are going to be arguing about habitual residence in every case on minute detail, rather than applying a simple ‘they ARE in Spain, but against dad’s wishes, so they are still habitually resident in England” test and

2. We’ve just lost the jedi hand-wave of “What’s my power to do this?” “The inherent jurisdiction” – and now need to find chapter and verse on Brussels II article 10.

And more to the point, the last thing anyone needs is more Brussels II.

If a lot of legislation has the ‘bet you can’t read all of this’ quality of “A Brief History of Time” then Brussels II is the equivalent of reading the entireity of “Finnegans Wake” whilst you have both a migraine and a nearby six year old boy who just got a One-Man-Band kit* for his birthday.

[* To play “Crash Bang Wallop What a Picture” on a one man band kit, with Tommy Steele was the second Jim’ll Fix It request I sent in. The first was to meet Enid Blyton, who was long dead at the time. In retrospect, I am no longer bitter and twisted that the BBC never granted my opportunity to go on Jim’ll Fix It]

 

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