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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]

 

Care proceedings by the back door

The Court of Appeal decision in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

This was an appeal from a mother, about a private law decision that her child should live permanently with the grandmother. The placement with the grandmother had come about by the mother signing a Written Agreement with the Local Authority that the child should live there.   [see previous post]

 

There are some obvious, and well-known points about whether such a placement is a section 20 placement (in which case the Local Authority have to do a fostering assessment of grandmother and pay her fostering allowance) or a private family arrangement (in which case they don’t).  As a general rule of thumb – if the Local Authority’s fingerprints are all over the placement (as they were here) then it is almost certainly going to be a section 20 placement – whether anyone involved wants it to be or not.

That wasn’t the thrust of this appeal though.

 

That was, rather, that by private law proceedings where the child was placed with grandmother (and the Local Authority had never done an assessment of the mother to see if she could have the child back) this child was permanently moved from mother to grandmother without any of the safeguards that such a proposition would have had in care proceedings. Were these, in fact, care proceedings by the back door?

 

The children had been placed in July 2012, the proposed assessment of the mother by the Local Authority never took place, and the mother made an application for a Residence Order (as it then was) in May 2013

A particularly odd aspect of these situations is that when the private law case goes to Court, when the Court asks for an independent section 7 report (to make recommendations for the child’s future), such report is usually sought from the Local Authority (rather than CAFCASS) because of their historical involvement.  Can you spot an obvious flaw in that aspect, if it is the Local Authority who engineered the move from mother to grandmother?

 

This is what the Court of Appeal say about their section 7 report

 

The mother sought the return of the children. Eventually, after mediation had failed and following difficulties in obtaining legal funding, the mother issued proceedings on 28 May 2013 seeking a residence order and the return of the children to her care. The local authority was ordered to provide a section 7 report. Written by Ms Nesbitt, it was dated 4 October 2013. An addendum section 7 report was written by her successor, Ms Fitzgerald, dated 13 December 2013.
 

Ms Nesbitt expressed the view that the children should remain with the paternal grandmother under the auspices of a residence order. For present purposes it is Ms Fitzgerald’s report which is more significant. In paragraph 4.1.2 she said:
 

“Further assessment of [the mother's] current ability to meet the needs of the children is required in order to provide evidence that she has made positive changes and more importantly is able to sustain such changes in the longer term.”
In paragraph 4.3.1 (paragraph 4.6.1 was to much the same effect) she said:

“… there is little evidence to support the children returning to their mother’s care … It is therefore the view of the Local Authority that Family Resource Team intervention is required in order to support [the mother] and her relationship with the children to include work around routines, boundaries and the appropriateness of comments made to the children by [the mother] … This intervention will enable the Local Authority to assess [the mother's] current ability to meet the needs of the children. [The mother] reports that she has made positive changes by accessing counselling and evidence of those positive changes is required by the Local Authority in order to establish [her] current ability to meet the needs of the children in the immediate and longer-term future.”
In paragraph 4.8.1 she said:

“As previously indicated, the Local Authority are of the view that intervention is required from the Family Resource Team who will work with [the mother] and the children in relation to routines, boundaries and inappropriate comments made to the children. This will enable the Local Authority to further assess [the mother's] current and longer-term ability to meet the needs of the children”
In paragraph 4.9.1 Ms Fitzgerald recorded a counsellor describing the mother as “engaging well with the service” which, as she commented, “demonstrates [her] willingness to engage with services to address concerns.” In paragraph 4.10.2 she observed that “mother’s current ability to meet the needs of the children remains un-assessed” and continued:

“it is the view of the Local Authority that Family Resource Team intervention is required in order to assess her ability to meet the needs of the children.”
Ms Fitzgerald’s overall view was expressed in paragraph 4.10.3:
 

“It must be acknowledged that if the children were to grow up in the care of the 2nd Respondent and not the Applicant mother, this has the potential to affect their identity and they may feel a sense of rejection from their mother. That said, at the present time, the un-assessed risk of placing the children in their mother’s care, far outweighs the risk of them remaining in paternal grandmother’s care and the ‘potential’ for this to have an impact upon their identity/emotional wellbeing.”

 

In light of Ryder LJ’s withering comments in Re P and B about the use of ‘unquantified’ as a perjorative term, the ‘un-assessed risk’ here is somewhat dubious. Particularly since it was unassessed precisely because the Local Authority had not assessed it.

 

Those representing the mother, quite rightly, sought that assessment of the mother’s parenting and any risks. That would be a basic foundation of any care proceedings and something that would be vital if deciding whether children should live permanently away from a mother. But in private law proceedings, it can often be rather more of a ‘beauty parade’  – which person is in a better position to provide care for the children here and now

 

The hearing before the Recorder commenced on 9 January 2014. We do not have a transcript of the hearing but Mr Ben Boucher-Giles, who appeared on behalf of the mother before the Recorder, as he subsequently appeared before us, has prepared a very helpful case summary for our use which sets out what we need to know. It has been circulated to the other parties and to the local authority, who have raised no objection and identified no errors.
 

The Recorder heard evidence from Ms Fitzgerald and her team manager, Ms Richardson. In cross-examination Ms Fitzgerald accepted that the mother was committed to her children and was prepared to work with professionals. She re-iterated that the local authority had not assessed the mother and could not therefore say that she had made sufficient progress to prove that she could safely care for them. In answer to the specific question whether there was any event since July 2012 which gave her any specific cause for concern in relation to the mother or her ability to care for the children, Ms Fitzgerald accepted that she could not think of anything in particular. She indicated that a delay in the proceedings – the assessment and associated work might take between 12 and 16 weeks – would have a “high potential of emotional impact” on the older child, though this was no more than the usual consequence of delay.
 

Ms Richardson expressed concern about the lack of assessment and accepted that the local authority had failed in its duty to provide the court with the information it required. She indicated that rehabilitation of the children to the mother “would not be beneficial until perhaps after CAMHS had reported – something may arise.”
 

Unsurprisingly in these circumstances, Mr Boucher-Giles applied at the conclusion of this evidence for an adjournment for the preparation of a full assessment of the mother’s parenting abilities. His argument, as recorded by the Recorder in the judgment she gave refusing his application, was that the court could not make a decision because it did not have any information about the mother and her ability to care for the children. The application was resisted by the paternal grandmother on the basis that the best interests of the children were served by the matter being brought to a conclusion, in circumstances where the local authority had indicated that it would not ‘walk away’ even if the case came to a final conclusion.

 

You can guess that the Recorder refused the adjournment, otherwise there wouldn’t be an appeal   (you may take it that every sentence that I have underlined could be read aloud  in a tone of total shock and wonder0

 

The Recorder dismissed the application. She explained why:
 

“In seeking that adjournment and in considering whether or not I should allow it, I must take account of various factors, one of those of course being that delay is inimical to these sort of proceedings. They need to be brought to a conclusion as soon as possible. I have to weigh against that, the fact that [the mother] has not been subject to any detailed assessment, the fact of the matter is that the court is in the position today where it has sufficient information to consider what is in the best interests of the children and if I were to adjourn where would we be then? We would be at a position where the local authority might be saying by virtue of their role in these proceedings that the matter should move to overnight staying contact. It does not mean that they would be in a position to make a final recommendation, not that anything is ever final in the lives of children because things move and things change, but I take the view that to delay these proceedings any further, these proceedings having been ongoing for some time, to delay them any further for the purpose of an assessment which might not be able to come to a final conclusion and might not be able to be effected due to the involvement of CAMHS with the older of the two children”.
The hearing proceeded. The Recorder heard oral evidence from the mother and the paternal grandmother. Cross-examined on the point, the paternal grandmother, who said she had spent a great deal of time in the mother’s company over the past 18 months, could not think of anything that had happened during that time which gave her cause for concern in respect of the mother or her ability care for her children, apart from some missed contacts.
 

In closing submissions Mr Boucher-Giles again invited the Recorder to adjourn for an assessment of the mother.
 

At the end of the hearing, on 10 January 2014, the Recorder gave judgment. She summarised the history of events, recording that, on the mother’s own evidence, she had had problems in the past with ill health, post natal depression and drug misuse and that, as a result, she had not been able to offer adequate care to the children. She described how matters had “almost reached crisis point” in July 2012. She described the mother’s position as being that she had only ever envisaged a temporary arrangement and that by April 2013 she was in a fit and proper position to deal with looking after the children herself.
 

The Recorder then said this:
 

“It has become apparent as well that there have been failings in social services dealing with this case and that was acknowledged by the team leader Miss Richardson when she gave her evidence that in fact no assessment of the mother has at any time been undertaken since the mother has recovered from all the difficulties that she had.
However I have to look at the welfare checklist and I have to decide this case on the basis of those matters”.
She drew attention to the fact that the older child appeared to be saying that she wished to live with her grandmother. She directed herself that the child’s welfare is the paramount consideration and that she had to have regard to the general principle that any delay is likely to prejudice the welfare of the child.

The Recorder reiterated her reasons for refusing an adjournment, saying:
 

“Clearly delay is a matter which I have to take account of if it is likely to prejudice the welfare of the child or the children and I take the view that any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.
It is clear as well that such a delay is an open ended delay, because no-one can say at this stage as to how long, as to what the outcome of overnight contact would be, if it was in fact recommended by the social services department.
… I take the view that delay would not be in the interests of these children, it would not be productive in terms of their welfare and it is for this reason that [the proposition that I should] adjourn for a period of time, is not one which lends itself to me.”

She then said this:
 

Can I say that I accept that there is no assessment of the mother as she is now. I do not make an assessment of her because I have only had the opportunity of seeing her in the witness box and my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.
One can only speculate as to what the outcome of that assessment will be“.
The Recorder then considered the welfare checklist, saying in the course of this:
 

“The court must also take into account the children’s physical, emotional and educational needs, well it is perfectly plain to me and I think it is even accepted on behalf of the mother that those needs are being met by the paternal grandmother at the present time. On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Having found that in the past the children had suffered harm as a result of the mother’s inability to cope, the Recorder continued:
 

I cannot say whether they are at risk of suffering in the future, it is probable that matters will move forward in fact it is inevitable that matter that matters will move forward but I am not in a position to make any finding as to whether or not they are at risk of suffering in the future.
What I also have to take into account is how capable the mother and the grandmother are in relation to the question of meeting the children’s needs. Well as I have already indicated it appears to be accepted and in fact I make a finding that the grandmother is in fact meeting the needs of these children and has done so at least for the last eighteen months and possibly for longer so far as [the older child] is concerned.
Taking all those matters into account I then have to decide what is the proper order in this case.
This is a case where the mother has, I have no doubt the best of intentions at heart, but I am not satisfied that it would be appropriate at this stage to make an immediate order granting her residence and so in those circumstances I dismiss her application for residence.
I then have to consider what orders I should make. At the present time the paternal grandmother has no legal standing because she has no orders and nothing in place at the present time. I intend therefore to make a residence order in favour of the paternal grandmother.”

 

The application for appeal was made, and Ryder LJ gave permission, identifying four important principles

 

The mother’s appellant’s notice was filed on 31 January 2014. Considering the application for permission on the papers, Ryder LJ had the benefit of Mr Boucher-Giles’ powerful skeleton argument. In giving permission, Ryder LJ observed that the grounds of appeal and skeleton argument at least four potentially significant issues, which he described as follows:
 

“(a) whether a court dealing with a private law children application is obliged to deal with the proportionality of the order as an interference with art 8 rights – the horizontality argument;
(b) whether the judge should have attached any greater significance to the position of a mother as against a grandmother – the imperative of being brought up by a parent if that parent is a good enough parent even though the grandmother may be better;
(c) whether the judge’s refusal to order an adjournment to obtain a section 7 assessment report from the local authority deprived the mother of the evidence that might demonstrate her capability;
(d) how the court should deal with section 20 accommodation cases where the local authority is acting as the decision maker but not taking care proceedings (and has not assessed the parent when arguably it should have done so).”
Ryder LJ “invited” the local authority to intervene in the appeal to make submissions in relation to issue (d). It has declined to do so.

 

Quite so. The vital ones of public interest are (a)  (c) and (d)  – point (b) already has the benefit of a lot of settled law.

 

The Court of Appeal determined the appeal solely on ground (c), leaving us in limbo as to the important questions in (a) and (d) until they arise again. The appeal was granted and the case sent for rehearing.

The stark facts here are clear and obvious. There had been no assessment of the mother. Ms Fitzgerald’s report was peppered with the recognition that an assessment was “required” in order both to provide evidence that the mother had indeed changed, and was able to sustain that change, and to assess her current and longer-term ability to meet the needs of the children. The Recorder acknowledged that there had at no time been any assessment of the mother, made clear that she herself had not made any assessment of the mother, and, most strikingly of all, found that, to repeat:
 

“I cannot say whether [the children] are at risk of suffering in the future … I am not in a position to make any finding as to whether or not they are at risk of suffering in the future (emphasis added).”
It is quite apparent that the Recorder’s decision was driven by her concern about delay. She says so explicitly in the passage, already cited, where she said:
 

“my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.”
That is elaborated in the passage where she said:

“any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.”
As to this I merely observe that one needs to bear in mind what Ms Fitzgerald had said in evidence (see paragraph 8 above) and that the Recorder’s comment about the delay being “open ended” (paragraph 16) involved little more than an educated guess – what the Recorder herself described (paragraph 17 above) as speculation – as to what might be revealed by the strictly time-limited assessment being proposed by Mr Boucher-Giles. There is also, in my judgment, much force in his submission that the Recorder focused too much on the short-term disadvantages without addressing, as she should, the medium and longer term implications.
 

The simple fact, in my judgment, is that the Recorder fell into a double error. By refusing an adjournment for the assessment which had never taken place, which the local authority acknowledged was required and which Mr Boucher-Giles was understandably pressing for, the Recorder denied herself vital evidence to fill what on her own findings were serious gaps in her knowledge of the mother and of the mother’s ability to care for the children. This was, as Mr Boucher-Giles submitted, an essential piece of information if the Recorder was properly to do her duty in accordance with section 1(3)(f) of the Children Act 1989. On top of that she placed far too much weight on a view as to the consequences of delay which was not borne out by the evidence.
 

This all fed into an approach which ended up being unfair to the mother and went far in the direction of effectively reversing the forensic burden. I have in mind in particular the passage in her judgment where the Recorder, having correctly found that the children’s needs were being met by the paternal grandmother, went on to note that:
 

“On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Indeed, but why was that?

It follows that, for all these reasons, the mother in my judgment succeeds on issue (c) and accordingly succeeds on her appeal.

 

The Court of Appeal then went on to have a go at the Local Authority (deservedly so in this case)

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing. I can well understand why Mr Boucher-Giles complains that the local authority has in effect instigated and resolved what ought to have been public law proceedings without legal authority to do so, sidestepping the need to prove ‘threshold’ and thus avoiding the important protections against State interference which Part IV of the Children Act 1989 provides. The mother, he says, was by virtue of the State’s actions placed in a position whereby her children were being cared for, against her wish, by the paternal grandmother and without any legal order in place. I place these submissions on record without expressing any concluded view, though agreeing with Mr Boucher-Giles that it would be a matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

 

It is a great shame that the Court did not get to grips with the issue of ‘back door care proceedings’, but one can see why the appeal so obviously suceeds on point c that it was not strictly necessary.

 

 

Written Agreements

 

Written agreements in cases involving Social Services are always a tricky thing. It is important that the wording is clear about what is being asked of a parent and what is okay and what’s not. It is also important that they are fair and not  “setting a parent up to fail”

 

These would be my golden rules for parents about written agreements

 

1. Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it

2. If you have a lawyer, you should ask for legal advice BEFORE you sign it.  If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement.

3. If you think that something isn’t fair, say so

4. If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement

5. Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

 

 

And for social workers

 

1. Be clear

2. Be fair

3. Don’t try to solve every tiny problem – worry about fresh fruit and veg and home-cooked shepherd’s pie AFTER you’ve solved the violent partner hitting the children.

4. It should be a two-way street – what are you doing to help the parent?

 

The Court of Appeal touch on a particular aspect of Written Agreement in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

There are some important issues in this case, so I will do a follow-up post, but just on the Written Agreement issue.

 

In August 2012 a social worker, Ms Nesbitt, was appointed to the case and in October 2012 began work on a core assessment. On 12 November 2012 the mother and Ms Nesbitt signed a document which described itself as an “Agreement” made between the local authority, the mother and the paternal grandmother. So far as material for present purposes it read as follows:
 

“This is not a legal agreement however; [sic] it may be used in court as evidence if needed.
This agreement has been complied [sic] to ensure that [the mother] agrees for [the children] to remain in the care of paternal grandmother whilst further assessments are completed.
[the mother] agrees to [the children] remaining in the care of paternal grandmother whilst further assessments are completed.

 

[As one of my commentators once had a go at me for [sic]  I will point out that these are the words of the Court, not mine. I loathe the use of [sic], and it isn’t something I would ever do.]

 

Ryder LJ seems to have assumed, and I can well understand why, that the powers the local authority was exercising in and after July 2012 were those conferred on it by section 20 of the Children Act 1989. But the very curious terms of the “Agreement” dated 12 November 2012 give pause for thought. Why was it stated to be “not a legal agreement”? Why was it said that “it may be used in court as evidence if needed”? Whatever it meant, and whatever its true legal status, it was treated by the local authority as enabling it – I decline to say authorising it – in effect to control this mother and her children. And, moreover, to exercise that control without the need to commence care proceedings and hopefully, from its perspective, without exposing the local authority to the various obligations which arise in relation to a child who is or has been ‘looked after’ in accordance with section 20.
 

I express no view at all as to whether this was in law the effect of what was being done, a question on which my Lady’s judgment in SA v KCC (Child in Need) [2010] EWHC 848 (Admin), [2010] 2 FLR 1721, is illuminating (compare the facts in that case as analysed in paras 57-60, 72-74). See also my Lady’s judgment in Re B, Redcar and Cleveland Borough Council v Others [2013] EWCA Civ 964, [2013] Fam Law 1382, and the earlier judgments of Smith LJ in Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181, para 49, and of Baroness Hale of Richmond in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, para 42, to which Mr Boucher-Giles referred us.
 

That is not all. I suspect that the reference to the “Agreement” being “used in court as evidence if needed” can only have been intended to have the effect of warning the mother that if she did not ‘toe the line’ the “Agreement” would be used against her in some way in any proceedings that ensued. I remark that, as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.
 

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing.

 

There are two issues here :-

 

1. The use of the wording that “this is not a Legal Agreement”  and

 

2. Whether a written agreement that is signed as ‘mere submission in the face of asserted state authority’  is fair

 

On the first point, I’ve seen this wording crop up on Written Agreements, and I don’t care for it. It is factually true that the document is not a Legal Agreement – in the sense that the Local Authority can’t sue for compensation or breach of contract or go to Court to MAKE a parent give up heroin because they agreed to it in writing.  But as the Court of Appeal point out, it is a document that would be used in evidence if there was a breach. It is a document that HAS CONSEQUENCES if you don’t stick to it, and those consequences are legal ones.

 

Does writing ‘this is not a Legal Agreement’ on them assist a parent? Well, I think very few parents were signing under the impression that the document was a contract under Contract law.  Does it hinder a parent? Well, if any of them read that message to mean ‘you don’t have to stick to it’, then yes, it does.

 

I can only think that at some time in the distant past, someone or other has said “These Written Agreements have to have written on them ‘This is not a Legal Agreement’, and it got absorbed into practice or philosophy. It might even have been a Judge. I haven’t found an authority to that effect, but it could easily be a small line in a judgment.

 

On the second, the Court of Appeal don’t go as far as saying that written agreements signed in that way should be disregarded   (unless they are a section 20 agreement that the child should live elsewhere, in which case it is established law that this consent must be given on an informed basis and freely, not under duress.

But it raises an important point – if the Written Agreement, as so many of them are, is really a  ‘sign this and you get one last chance before we take the kids’ then is the consent to the written agreement just an extension of what the Courts have ruled wrong in s20 cases ?  Remember that the s20 cases are not about the wording of the Act, which doesn’t mention consent at all, but about the wider Human Rights Act principles of proportionality and fairness.

 

Written Agreements can be valid tools for helping a family to change, to solve problems and in some cases to remove the risks that would otherwise make the children unsafe at home, but a degree of thought has to be given about their construction and use if they are instead being ‘sign this or else’

 

The principles in Re CA would be a sensible way to look at Written Agreements  (even when they are not agreements that involve agreement that the child live elsewhere , section 20)

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

 

 

 

 

We are all unquantified risks

 

This was a permission hearing, Re B and P 2014 heard before Ryder LJ

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1133.html

There were a number of features which made the permission hearing difficult, not least that the parents, their McKenzie Friends and the Court did not have any of the papers from the care proceedings, save for a transcript of the judgment.

So, Ryder LJ listed the case for a rolled-up appeal (the permission application first, and to go on to an appeal if successful)

Why did nobody have the court papers?

Well, the parents were in person, and their solicitors had sent the bundles off to the cost-draftsmen (if you aren’t a lawyer, that will be meaningless, so by way of explanation it means that in order to get paid, the lawyer has to send all of their papers off to a specialist who then draws up the detailed bill to send to the Legal Aid Agency, who then sit on it for nineteen months and then pay an arbitrary amount that bears little relation to the actual bill)

The parents had asked the Local Authority to give them a copy of the bundle and the Local Authority had refused.

Now, the Local Authority weren’t at this appeal hearing, so I don’t know their side of it. It might potentially be that there was felt to be some very good reason why it would be unsafe for the parents to have those papers.  Hopefully it is some legitimate reason and not just being awkward. I suspect if the reason was just ‘it’s not our job’ or ‘why should we do it?’ or ‘get it from your own lawyers’, that’s not going to cut it with the Court of Appeal.

The parents appealed on six points, two of which Ryder LJ kicked out straight away, but he was interested in some of the others.

[From the reported facts of the case, I am reasonably sure that the judgment that was being appealed was Parker J in Hertfordshire
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2159.html - there are SO many similiarities, it would be hard for it to be coincidence. Not least because both cases involve a father being convicted for assaulting a social worker and a dispute about a religious naming ceremony]

 

Mrs Haines, representing the parents as a McKenzie Friend, puts the nub of the case very neatly

The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?

The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?

 

 

This is a peculiar one, since despite a previously unfortunate history, it appears from the judgment that assessments were such that the parents were given an opportunity to care for their new child at home and it was the father’s violent outbursts to professionals which led to the shift in plan from placement with parents to adoption.

 

So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?

A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.

In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

I don’t know yet whether when the Court of Appeal tackle this case in full, with all the papers, and hearing from the other parties, the final outcome will be very different to Ryder LJ’s take, but it certainly raises an important and interesting aspect.

If the sole concern is that a parent is not co-operating with the Local Authority (even violently not co-operating), what is the risk to the child that justifies the State assuming care of the child?

There are some people who are violent to their partner and their child, and that bleeds into their violent outlook on life and approach to professionals. There are people who betray their violent tendencies and nature by the manifestation of their temper, and one learns of the risk that they would pose to others close to them.

But there are some people, maybe not many, but some, who just violently dislike social workers and are not afraid of saying so, but would pose no risk of violence to those around them.

This appeal might answer the question – if you’re not harming your child by doing so, are you entitled to be vile to social workers ?

If it does answer that question, there will be a lot of people interested in it either way.

There are two different perspectives here

(A) That the father was the protective factor against the established problems the mother had in providing care for a child, that he would need support from professionals and how can that support be provided if he is assaulting them physically when they visit?

OR, conversely

(B) If the major problem that the father has only happens when social workers visit, then it is solveable by just not having social workers visit.

It has tricky socio-political consequences, if the Court of Appeal do answer this point (and don’t hold your breath – remember that Re B went to the Supreme Court specifically to resolve the vexed question of emotional harm and completely ducked the issue)

If the Court of Appeal were to find that (A) is the right answer, then parents and campaigners will feel that this is carte blanche for social workers to cultivate a bad relationship with a parent and then rely on that same bad relationship as reason why the child has to be removed.

If the Court of Appeal were to find that (B) is the right answer, does that give a green light for parents to abuse and intimidate social workers?

Which is why I suspect a way will be found to duck the points that Ryder J raises.

[If there was a bet to be had on the outcome of this appeal, the sure thing is “If a parent or their McKenzie Friend asks the Local Authority for a copy of the court bundle to assist in an appeal, the Local Authority MUST provide it” (and probably that the LA must also produce appeal bundles and copies for the Court too) ]

Children giving evidence

 

This is a Court of Appeal decision, arising from a private law case in which there was an issue as to whether a child should give evidence as part of the forensic exercise of determining the truth of what happened.

Re B (Child Evidence) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1015.html

 

John Bolch does an excellent summary here

http://www.familylore.co.uk/2014/07/re-b-children-giving-evidence.html

 

The case builds on, but doesn’t change the principles set down by the Supreme Court in Re W  http://www.bailii.org/uk/cases/UKSC/2010/12.html

 

The fundamental difference is that in Re W, the potential child witness was the subject of proceedings (thus the welfare of the child was a legitimate component of judicial decision-making, though not the paramount consideration), whereas this was a sibling/half-sibling of the child in question and thus wasn’t covered by that umbrella of welfare.  Other than in the broader philosophical sense that a Court dealing with the welfare of a particular child ought not to cause harm to another child in that pursuit of a decision. Also, in Re W, the child had given a video interview to the police and that could potentially stand as evidence, in this one, the child had not given any interview and the issue was whether and how the child’s evidence ought to be placed before the Court if at all

 

The original trial Judge had decided that a series of questions ought to be drawn up and the CAFCASS adviser ask them of the child and record the answers, deciding to leave the issue of live evidence to one side until that information was available.

I’m not quite sure why the appeal was brought before that decision was made, or how the Court of Appeal dealt with it so quickly (it feels a bit premature to me, but nonetheless they did)

 

The Court of Appeal backed the decision of the trial judge to proceed in that way, but were keen to stress that this was not sanctioning an opening of the floodgates (as Jack of Kent has pointed out, floodgates opening is actually a good thing contrary to the metaphor – they are SUPPOSED to open).

 

  • I would not expect our endorsement of Judge Cameron’s decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.

 

 

 

  • In addition to the argument that G’s evidence was peripheral, it was also argued on F’s behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G’s evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.

 

 

 

  • I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.

 

 

 

In the light of the Court of Appeal’s decision to nuke fact finding hearings in public law from orbit, a decision I respectfully think is something one could happily eat with cheese, I thought these remarks from the Court of Appeal were interesting

The pursuit, in public and private children proceedings, of “the truth” about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court’s findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies.

 

Quite so.

Vulnerable witnesses and parents article 6 rights

 

 

This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.

 

The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

 

The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it

 

Re A (a child) 2012   http://www.bailii.org/uk/cases/UKSC/2012/60.html

 

The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.

 

The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic

 

This was what happened in relation to X’s evidence at the finding of fact hearing.

 

  1. In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.

     

  2. During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.

 

Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.

 

This is what Pauffley J said about X’s evidence

 

  1. Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:

     

    “I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”

  2. That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.

 

When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.

 

Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.

 

The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him  (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.

 

During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.

 

And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:

 

a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.

 

 

Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.

 

  1. Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.

     

  2. Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.  
  3. Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.  
  4. In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.

 

 

 

The Court of Appeal felt that they had to overturn the findings

  1. It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.

     

  2. Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:  

    a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

    b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

    c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

    d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

    e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

    f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

    g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.

  3. In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.

 

 

Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

  1. However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.

     

  2. The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.  
  3. Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:  

    a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

    b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

    c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

    d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.

  4. It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.  
  5. It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.  
  6. Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.

 

 

The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

  1. Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.

     

  2. It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.  
  3. In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.  
  4. As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.

 

 

This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.

 

So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)

 

Interim care order appeal (unsuccessful)

 

This is our dear old friend section 37 again, and also a regular topic on these blogs – the bringing of allegations that aren’t proven and the consquences for the person bringing the allegation.

 

Re W (A child)  2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/772.html

 

In this case, private law proceedings were taking place between the two parents about where the child (an 8 year old girl) should live and how much time she should spend with each parent. As part of those proceedings, very serious allegations of sexual abuse were made against the father

[I note, and think it is probably more important than the Court of Appeal treated it, that the Court had previously made findings that the paternal grandfather had sexually abused the child - that sort of thing would probably make any parent hyper-sensitive and vigilant, and also possibly means that the child might act out in a sexualised way as a result of the established sexual abuse which might lead a mother to mistakenly but genuinely think the father had done something. I don't say that this explains and excuses everything, but it is quite an important bit of context]

 

At the finding of fact hearing, the Judge found that none of the mother’s allegations were true, and went on to make an Interim Care Order removing the child from mother’s care – although no public law application by Social Services had been made, the Judge using the power under section 37 of the Children Act 1989 to make an Interim Care Order in the absence of an application (albeit for a maximum of 8 weeks, rather than for whatever duration the Court sees fit as with the new public law regime)

 

 

  • On that day the judge concluded at [246] to [260] of his judgment that all of the allegations that the mother had made against the father were false including, in particular, that he had ever behaved in a sexually inappropriate way towards his daughter. The judge set out his conclusions in considerable detail. The conclusions that were reasoned in the previous 245 paragraphs. He held that the mother:

 

 

 (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;

(ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;

 (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;

 (iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;

 (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;

 (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;

 (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);

 (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;

 (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;

 (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and

 (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.

 

  • The judge concluded that the child could not remain living with her mother before the case was finalised because of the mother’s behaviour, in particular her involvement of the child, and her unjustified convictions, in particular that the father was dangerous and presented a risk of sexual abuse. The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.

 

The mother appealed this.

 

The Court of Appeal rejected it. They considered firstly that the Judge had applied the correct test in law

 

 

  • Turning then to the implications of the findings of fact that the judge made. It should be noted that it is no part of this appeal that the judge applied an inappropriate test to the question of removal. That test was set out in Re LA (Care: Chronic Neglect) [2010 ] 1 FLR 80 at [7] by Thorpe LJ:

 

 

13. “separation is only to be ordered if the child’s safety demands immediate separation [...] at an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection”

 

  • Safety is given a broad construction and includes the child’s emotional and psychological welfare (see, for example, Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1211 at [56]).

That test is usually seen in connection with an application by a Local Authority to remove a child under an Interim Care Order, but exactly the same principle and legal test extends to a Judge making an Interim Care Order and his own care plan of removal   [The more difficult issue of how a Judge doing this is becoming both the applicant and the tribunal is something that doesn't get raised - to me, it is a significant problem, but the Court of Appeal when dealing with other section 37 appeals haven't ever felt it was problematic]

 

The next issue was whether the Judge had properly applied the facts of the case to that test, when deciding that the test was met  – and specifically whether the Judge had failed to look at whether removal was proportionate and what other options were available that would have been less interventionist.

 

  • The question is whether the test was wrongly applied to the facts. The judge rejected the mother’s allegations that the father had been involved in or was aware of the sexual abuse of the grandfather or had himself acted in a sexually inappropriate manner. The judge made extensive findings about the inappropriate conduct of the mother which I have summarised by using the analysis that the judge himself constructed at the end of his judgment. The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child. The judge’s finding that the mother was “bent on manipulation and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.

 

 

 

  • Given that context, the judge was required to consider his child protection duties and powers. The only question that realistically arises on this appeal is whether he exercised them proportionately. There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order. The test for removal was clearly satisfied on the facts as found and that only leaves the question of whether there was a less draconian, i.e. more proportionate order that the judge could and should have considered.

 

 

 

  • I ask the question rhetorically: given the court’s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother. Each of the alternative orders described to this court would have left the child in that care without any better ability to protect the child than there had been hitherto. The situation might have been different if there could have been effective policing of that care in the interim and before other assessments were conducted but that was not an option addressed to the judge or to this court. I bear in mind that the family court sometimes hears cogent evidence of particular harm that may be caused on the removal of a child from the care of a parent which the court must consider and balance in the welfare analysis and proportionality evaluation, but that was not this case.

 

 

 

  • The distress that had been engendered in the child, as advised by the children’s guardian, sadly made an immediate move to the father impossible. No other relative was immediately available without assessment of the position that relative would take in the highly antagonistic and dysfunctional family relationships that existed (for example, to consider the effect on the maternal family of the mother’s discussions with them that the father was a paedophile). That included the mother’s sister who is now being assessed by the local authority. The only realistic option that remained in this case was the neutral position of short term foster care.

 

 

 

  • The judge described his decision as proportionate at [264] and in accordance with the child’s welfare having regard to the ‘welfare checklist’ in section 1(3) CA 1989. He specifically envisaged a short period of respite care while the local authority explored the possibility of placing the child with her father and/or the obtaining of therapeutic assistance for the mother. Given the need for an assessment of the child’s aunt (who has not challenged the interim conclusion of the judge), there was no immediately available realistic option for the court other than removal.

 

 

 

 

 

 

  • Leading counsel for the father has taken the court through the judgment, identifying the specific points at which the judge came to value judgments about the welfare factors in section 1(3) CA 1989 based on the facts that he found. None of those conclusions is seriously challenged in this appeal and it is not necessary for this court to set them out seriatim. The judge analysed his conclusions by reference to more than 40 written submissions made by the mother. The judge did not specifically address the child’s wishes and feelings in his analysis but he had set out in detail what it was that the child had been influenced to say. It is hardly surprising that there was little more that he could add given the context in which he had to make his decision. It may well have been harmful to ask the child anything else at that stage. Likewise, the judge made ample reference to the situation the child was in and focussed on the unacceptability of its continuation. To that extent the effect of the proposed change of circumstance for the child was regarded as positive and no party other than the mother disputed that.

 

 

 

  • Given that a decision by a court to remove a child into public care, whether in public or private law children proceedings engages article 8 of the ECHR, a welfare analysis and proportionality evaluation are necessary. In any case where there is more than one realistic option it will be necessary for the judge to summarise his conclusions in what is now a conventional balance sheet approach i.e. where there is a choice to be made between two or more realistic options, an analysis of each option by reference to the welfare checklist is required so as to afford paramount consideration to the child’s welfare. The court is then required to evaluate the proportionality of its proposed intervention (and / or that of the local authority) by conducting a balancing exercise in which each of the available options is evaluated by considering the positives and negatives, or the benefits and detriments, of each option side by side. An adequately reasoned judgment must deal with the reasonably available options and give them proper and focussed attention.

 

 

 

  • That was not this case. There were no other realistic options i.e. options that were reasonably available to the court and no more proportionate interference than that contemplated by the judge. Given the stark facts, no further analysis was necessary.

 

 

[Okay, this may be more widely important, because this is the Court of Appeal accepting the point that some High Court Judges, notably Pauffly J have made about Re B-S, that the Court isn't required to rigorously scrutinise EVERY option, only the realistic ones. The Court of Appeal accept that what is required of a Judge is to analyse each of the REALISTIC OPTIONS.  They say in this case that there were no other realistic options, so the level of scrutiny and weighing up was much lower.  That, to me, is interesting, since I read last week of a Court of Appeal judgment that overturned a Placement Order where BOTH OF THE PARENTS WERE IN PRISON at the time of the final hearing and were going to be there for some years to come, and the Court of Appeal overturned it for lack of proper analysis of the options. Consistent much?    *  I have that on Lawtel as Re T (a child) 2014 but without a bailli report yet, and Lawtel is paywall-y so I can't link]

I would be using Re W (a child) 2014 as Court of Appeal authority for the principle that only the REALISTIC options need to be scrutinised and weighed.  (That raises the question of how you sift the options into realistic and unrealistic without scrutinising them, but y’know, there are degrees of scrutiny  – like for example, mum is not a realistic option to care for her child because she is doing FIVE YEARS IN PRISON)

 

The Court of Appeal here are saying that removal on the facts of the case was such a blindingly obvious outcome that it doesn’t matter if the Judge didn’t spend much time in the judgment setting out the pros and cons, the facts speak for themselves.  [They might regret that, this seems to be something that lawyers could argue about till the end of time - was THIS case bleedin' obvious, or was it finely balanced? We call an expert witness, whose specialist subject is the Bleedin' Obvious, Mrs Sybil Fawlty]

 

So, the mother’s appeal on those first two points failed – the next point was whether this was procedurally fair and whether she had been properly placed on notice that she might face an Interim Care Order and removal of her daughter.

 

  • It is convenient to take the last two propositions first because the whole context of the decision making process needs to be analysed if one is to understand what happened on the day the order was made. At the time the fact finding hearing was being case managed by Judge Cardinal on 21 June 2013 the judge indicated to the parties in the presence of the mother that if it were subsequently to be established that the mother was leading the child to make false allegations against her father, the court would consider making a residence order in favour of the father. At that stage, the judge had identified as a key issue the nature and extent of the harm that was being or would be caused to the child if the mother’s allegations were false and had rightly, in my judgment, identified one of the potentially serious consequences, namely removal of the child and a change of residence away from the child’s primary carer.

 

 

 

  • On 16 July 2013 at a hearing when mother was again present and assisted by an experienced McKenzie friend, Ms Haines, Judge Cardinal repeated his concerns to both parents: the consequences for each parent of the allegations being determined to be true or false were patent. On 18 October 2013 in the presence of Ms Haines, the judge explained to the mother that if he rejected her allegations he would have to very carefully consider the child’s future.

 

 

 

  • On the morning of 28 October 2013 before the fact finding hearing in question began, Judge Cardinal addressed all the advocates and Ms Haines. Entirely properly and to enable the parties to think about their positions, the judge indicated that if the mother’s allegations against the father were subsequently proved, he would have to consider exercising his powers to make a section 37 direction and an interim supervision order because the threshold for intervention would be met and the child would need protective assistance. He also dealt with the converse position. He explained that if the allegations were found to be false (a necessary and logical position on the facts of this case if they were not proved) he would have to consider exercising his powers to make an interim care order on the basis he would approve the removal of the child from the mother’s care. These observations were repeated by the judge more than once during the fact finding hearing.

 

 

 

  • The fact finding hearing was adjourned on 31 October 2013 at the conclusion of the oral evidence. The judge directed the parties to file written closing submissions by 10.00 am on 6 November 2013 in preparation for the resumed hearing on 11 November 2013. The judge directed the local authority as the recipient of his section 37 direction to attend court on 11 November 2013. In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions. The questions related to what orders he should make specifically including the options of interim care or supervision orders and residence and contact orders. The mother understood the judge’s intentions at least to the extent that she faithfully replicated his questions in her written submissions.

 

 

 

  • The mother did not answer the questions posed by the judge in her written submissions but as respects the notice she had of the judge’s powers and his realistic options, it is quite clear that she had days not hours or minutes to consider her position. Indeed, as to the key question about the removal of her daughter, she had more than 4 months notice and repeated reminders of the stark position that faced everyone if her allegations were found to be false.

 

 

 

  • As the judge records at [56] of his judgment, the mother’s closing submissions were received and considered after the deadline he set. There were in fact four sets of closing submissions from her, the last of which was received on 11 November 2013 which was the resumed final hearing day. By that time the mother would have been aware of the written submissions of the other parties specifically dealing with removal and inviting the court to take that step. The father asked the court to remove his daughter from the mother’s care and the children’s guardian recommended and reasoned the precise order made by the judge. The guardian also dealt with the difficult position that would arise if the judge decided that the mother’s allegations were false and that she had involved the child in her allegations to the extent that on removal the child would not immediately be able to go to live with her father.

 

 

 

  • At [30] and [31] of his judgment the judge records the following:

 

 

12. “[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child's] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

12. [31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home.”

 

  • Once the judgment had been handed down the judge gave the parties the opportunity to reflect on his conclusions and have discussions including with the local authority who were present in accordance with his earlier direction. Counsel recollect that there was a period from about 12.30 pm to 2.15 pm during which the mother asked the local authority to consider placement of her daughter with the mother’s sister. The local authority would not accept that proposal without an assessment for reasons that are understandable having regard to the content of the judgment. That decision was not at that stage a matter for them but rather for the court and it is of note that from about 2.15 pm to about 3.00 pm the mother was given and used an opportunity to make further oral submissions to the judge about her proposals and the orders that the court could make.

 

 

 

  • Given the judge’s record and that of all counsel in the case and for the reasons set out above, I cannot accept that the mother would have been in any doubt about what the judge was able to do and indeed what he proposed to do if the facts were found against the mother and absent any submissions as to other alternatives. The mother had every opportunity which she used to make proposals about placement including her sister and other members of the family. During oral submissions to this court and for the first time both without written warning or earlier complaint, the mother instructed her counsel to the effect that she had not had notice of the other parties written submissions because she had had computer difficulties and had not been able to open their documents. The process that I have described and the manner in which this complaint is disclosed to this court make it inherently unlikely but even if it is correct, there is ample other material to remain of the firm view that there was no procedural irregularity. This element of the ground of appeal is without merit and is not the case that was put to the single judge when he granted permission. There was no procedural irregularity or unfairness

 

 

There does seem to be quite a few warning shots there, that weren’t picked up on.

 

An argument that was not raised by the mother’s McKenzie Friend which might have been (I think the appeal was doomed, but I would have liked to see how the Court of Appeal tackled this) was the article 6 point. A parent in private law proceedings can be unrepresented – and in this case it seems that the mother was – making use of a McKenzie Friend, because she would not qualify for free legal representation.

In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions.

In a case where a Local Authority applies to remove your child, you automatically qualify for free legal representation. Once the Judge was contemplating the possibility of making an Interim Care Order and removing the child,  should the mother not have been entitled to free legal representation in exactly the same way that she would have been in care proceeedings?  From the point of view of a parent’s rights, does it matter whether the Interim Care Order is made by a Judge after a Local Authority apply, rather than by a Judge of his own motion?  The issue is the removal of the child from her care and into foster care, surely?

 

If a Judge is contemplating removal of a child into foster care under section 37,  should a parent not be entitled to free legal advice and representation about that, and be able to challenge it with the benefit of such representation?  Is it a denial of the principles of Airey v Ireland for her to NOT be able to be represented?  Given the warning that the Judge gave to the mother about the risks of the finding of fact hearing, might it have been beneficial for her to have had legal advice?

 

 

 

Private law appeal (unsuccessful)

The Court of Appeal have given judgment in Re H (Children) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/733.html

 

This relates to an appeal from the decision of Parker J to make an order transferring residence of three children from their mother’s care to their father’s care AT AN INTERIM STAGE – the case is not over and further steps are being taken prior to the final hearing of the private law applications.

 

The interim change of residence followed a finding of fact hearing in which the mother made very serious allegations about the father – including that he had raped her and hit the boys with a belt. The boys had made that allegation during police ABE (Achieving Best Evidence) interviews.

 

The Court of Appeal are quite right, to make sense of the appeal, one needs to look at the context of the litigation, which they set out in summary form

 

  • In order to make sense of what follows, it is necessary to set out the bare bones of the chronological history which catalogues the development of evidence with respect to each of these two core themes.

 

 

 

  • On 4th April 2013 the mother applied for an injunction against the father under the Family Law Act 1986 and made applications for residence and supervised contact orders with respect to the children. In her witness statement supporting those applications the mother did not complain that she was the victim of any physical or sexual violence from the father save for one occasion nearly twenty years earlier prior to their marriage. She did, however, allege that the father was highly controlling and threatening in his manner towards her and that he would regularly assault the children and, in particular, would take a belt to them if he considered that they had misbehaved. The father issued a counter application for contact and specific issue orders regarding the children’s schools.

 

 

 

  • The first court hearing took place on 15th April 2013 before DJ Hodges. At that hearing the mother’s position had changed from one of supporting supervised contact between the children and the father. Her case was that the elder boy, A, opposed the two younger children having direct contact with the father and the mother herself therefore opposed direct contact for any of the children. At the hearing the District Judge explicitly stated that the court would start with the presumption that children should grow up knowing both parents. Some 2 hours after the conclusion of that hearing the mother and A attended the local police station and made allegations about the father’s behaviour. The police record shows that, in addition to the allegations of violence towards the children, the mother alleged that the father had also been violent towards her, but that his abuse of her was “mostly emotional and sexual”.

 

 

 

  • On the following day, 16th April, police visited the mother and the children at the refuge. Notes of that visit indicate that C and A made allegations of physical assault by their father, but that these were not substantiated by B’s account. The mother’s complaint was of emotional and mental abuse. She made an historical allegation that he had raped her and she stated that he had physically abused her, but that this had not happened for some years. In subsequent police interviews (in April and in September) the mother came to make allegations of repeated rape and controlling behaviour.

 

 

 

  • On 23rd April A undertook a formal Achieving Best Evidence ["ABE"] interview with the police in which he made various allegations of physical assault by the father, including the use of a belt.

 

 

 

  • Matters then took a striking turn when, on 30th April, the father filed a statement exhibiting a number of notes and other documents written by the mother which described how she had herself been violent to the children, that she was unable to cope and was unable to control her consumption of alcohol.

 

 

 

  • At his subsequent police interview the father denied the allegations of rape, violence and controlling behaviour. He accepted that during one of A’s violent outbursts he had physically intervened.

 

 

 

  • The first hearing before Parker J took place on 7th May 2013 in which the judge heard oral evidence from the mother, father and paternal grandmother. The judge’s judgment on that occasion indicates that the background material produced by the father, originating as it did from the mother’s own hand, suggested that the father’s case that the mother was emotionally very troubled, was borne out. The judge said that the material that had been produced “worries me in the extreme, particularly the mother’s reference to drinking, Alcoholics Anonymous and being physically out of control with regard to the children”. The case was thus one in which allegations flowed in both directions.

 

 

 

  • Having heard the mother’s oral evidence with regard to the father’s behaviour and, in particular, his use of a belt on the children, the judge was plainly unimpressed with her credibility and stated “I thought that the mother’s evidence with regard to the belting was all over the shop to put it bluntly as to what actually she said had happened and what precisely she knew”. The judge was, however, plainly impressed with the “quite excellent” paternal grandmother who the judge described as being “true as steel, stout as oak”.

 

 

 

  • As a result of this, her first encounter with this case, the judge developed a very clear strategy as to the way forward. Whilst expressing concerns that the mother’s presentation, and the children’s allegations, might indicate that the children had become “recruited children”, in the sense that they had fallen in with their mother’s view of matters, the judge was prepared to accept, for the moment, that these matters were as a result of her troubled emotions and were not deliberate acts. The judge therefore ordered that the two younger children should be made available for contact with their father each Saturday during the day, but that all such contact should be supervised by the paternal grandmother and a paternal aunt. A was free to attend contact with his father and brothers should he desire. The judge fixed a further hearing for the end of June.

 

 

 

  • Three days later, on 10th May, the mother made a without notice application to stay the contact order. Fortunately it was possible for the father and his legal team to attend court on that hearing before Parker J, who, having heard the matter, dismissed the mother’s application. It is apparent that, again, the judge heard oral evidence from the mother on that occasion. The judge records the mother as saying that she was not relying on her serious allegations of domestic violence against herself and the children in opposing contact, but upon the need for the family to “heal” from the difficult marriage and marital circumstances and for the children to repair their relationship as siblings before contact could take place. The judge expressed great concern about what she perceived as the mother’s shifting stance in the proceedings, which did not demonstrate a solidly-founded mindset upon which the court could place any confidence. The mother’s application for a stay was founded upon A refusing point blank to attend any contact with the father and the younger children being said to be visibly upset and awake all night after being told of the proposal for contact. The judge on this second hearing expressed herself as having far more cause for concern as to the extent to which the children had been drawn into adult concerns and adult perceptions. The judge considered that the mother’s “havering and wavering about what her case actually is” supported her view that a firm grip was needed to be taken on contact before there was further opportunity for matters to deteriorate. The judge therefore repeated that she expected contact to take place in accordance with the order.

 

 

 

  • On 28th June all three children were interviewed by police and made allegations of violence against their father.

 

 

 

  • The judge had directed the local authority to provide a report pursuant to Children Act 1989, s 37. In that report, which is dated 26th July, the local authority recommended that no contact with the children’s father should take place “for the time being”.

 

 

 

  • At the end of September, and again in a revised document one week later, the mother filed a detailed schedule of allegations. That second (revised) document raised, for the first time during the court process, allegations of rape “on numerous occasions” from l992 onwards.

 

 

 

  • At this stage the father filed additional material including video, audio and photographic evidence which included a film apparently taken by A of a violent assault by C on B. It was apparent that the father was not present in the house and the children were in the care of the mother, who, apparently, can be seen ineffectually attempting to stop the assault and then leaving the room. This material was viewed by Parker J during a hearing on 29th October. That hearing, which had been intended to be a substantial fact finding process, was thwarted in two respects. Firstly, sadly, the mother’s father had died some five days earlier and she was not available to attend for all of the three or four day trial. Secondly, as a result of a failure by the police to respond to orders for disclosure, the court did not have access to key police records. The case was therefore adjourned part heard. However, at this hearing the court again heard evidence from the mother, father and paternal grandmother. In a short judgment given on 30th October the judge concluded that the risk of the children being put under pressure by the mother was very high in the light of the mother’s inability (apparently demonstrated in the witness box) to restrain herself in airing what she says about the father, including allegations of rape, in the children’s presence. The judge concluded that professionally supervised contact was not in the children’s interests, as there was a high risk that the children would understand that they should behave badly at contact so that this behaviour would be seen by the contact supervisors.

 

 

 

  • Although the judge was plain that the fact finding process was not concluded, and that she kept an open mind, she was struck by the fact that the two younger children had not made assertions of being belted by their father until after the judge herself had made her adverse comments relating to the mother’s oral evidence at the May hearing. The judge seriously entertained the view that the younger children may well have sought to provide corroboration for the allegations that were being made by picking up from the mother’s conversation, either directly with them or by overhearing what she said to A, what the issues in the case were. The judge therefore considered that contact should be reinstated to the father as soon as possible for the younger two children. The judge was clear that, because of A’s alliance with his mother, he should not attend those contact visits, but could, if he wished, have supervised contact with the father. The matter was set down to conclude the fact finding process at a two day hearing on 19th December.

 

 

 

  • Between the October and December hearings contact took place, but not without incident. It is not necessary to spell out the details, but in consequence of the difficulties on 4th December the father applied to enforce the contact order and applied for a residence order with respect to the two younger boys.

 

 

 

  • The fact finding hearing concluded on 19th and 20th December with judgment being given on Monday 23rd December. On the first day of the hearing the court ordered that B and C should stay overnight that night with the father. During their stay the two boys received a text message on their mobile phone from their elder brother A encouraging them to disrupt their time with the father. Part of the message read “fight, break stuff and argue to get out of this situation…you know what to do to get out of this situation…if you don’t act [F] will have custody of you after tomorrow. Good luck. Break, destroy and burn.”

 

 

 

  • At the conclusion of the hearing on 23rd December the judge made an immediate order transferring residence of the two younger boys to the father and making a residence order for A to the paternal grandmother. It is against those orders that the mother now seeks permission to appeal.

 

 

The appeal was centred around 3 issues

 

1. That the judge had come to conclusions prematurely about the allegations, making up her mind before hearing all of the evidence. In part because the earlier history of the litigation had set her mind against the mother’s allegations before the evidence was properly tested at a finding of fact hearing.

2. That in meeting the boys whilst the finding of fact hearing was going on, the exercise crossed from the appropriate one of familiarising the children with the Court and the process into an inappropriate one of gathering evidence  (I note, in passing that Parker J was of course the Judge who was recently criticised by the Court of Appeal for just this issue, having asked a child some 87 questions during an hour long interview http://www.familylore.co.uk/2014/05/re-kp-childs-meeting-with-judge-is-not.html )

 

3. That the Judge had decided that the case warranted an expert of particularly high calibre to assist, but then went on to decide that as the expert she had in mind was not available, no expert would be instructed.

 

[For my mind, looking at this purely from the outside, the third point is the best one, but relatively little was made of it]

 

Point 1 – the appellant claimed that the Judge had prematurely reached conclusions and as a result had curtailed mother’s ability to call witnesses and to put matters to those witnesses who had been called (regular readers will know that this is the Jones v NCB point – has the Judge ‘descended into the arena and become a participant in proceedings’ ?

 

This in part is complicated by the fact that the Judge had previously conducted a hearing in the case, and evidence had been heard during that hearing. Was the Judge entitled to rely on the impressions she formed of the evidence in the earlier hearings, thus allowing her to fairly restrict evidence and the extent of the evidence this time around? The Court of Appeal said yes, she was.

 

  • The range of detailed points about the judge’s conduct of the proceedings all, to a greater or lesser extent, come back to the central submission that the judge formed a premature conclusion on the factual material which was adverse to the mother’s case. That the judge had formed a preliminary view by, at the latest, the end of the October hearing, seems clear. In the light of that view, and conscious of the very tight timetable within which the December hearing had to be completed (given that the judgment was in fact handed down on the first day of the vacation), the judge may have been justified in excluding certain matters entirely from consideration in oral evidence, limiting the witnesses and the time available for cross-examination. On this point Mrs Crowley’s core submission is that the judge was wrong to use the early adverse view she had formed of the mother’s evidence to determine the allegations that had been made by each of the three children and to do so without a proper evaluation of the primary material that only became available to the court at the December hearing. That primary material comprised of the disclosure that was received from the police, including, importantly, the records of the various interviews undertaken by the children and the parents together with a DVD recording of A’s ABE interview. In particular, a point is made concerning the judge’s assumption that the younger boys only made allegations of physical assault by their father after Parker J had made adverse observations about the mother’s credibility at the May hearing. That assumption was shown to be erroneous with respect to C on disclosure by the police on the eve of the December hearing of a note of the interview with him undertaken by the police on 16th April. Mrs Crowley submits that the judge simply failed to engage with this new material and did not refer to it in the judgment.

 

 

 

  • In this respect Mrs Crowley is correct. At paragraph 63 of her December judgment the judge deals with the issue in this manner:

 

 

“I have thought very hard, notwithstanding the evidence that I have heard about good contact, whether there could have been incidents when the father had taken a belt to the children, whose behaviour was, as I have said, seriously out of control at this time. But as a result of the combination of the timing; the older boy’s assertions; the fact that the children were taken to the police station, as they must have been, in order to make this disclosure; the fact that I had made comments in my judgment only weeks previously about the lack of any assertion by the boys; I have come to the conclusion that I cannot place any reliance on these allegations. Also, the mother’s case about what she knew at the time has been markedly unreliable and inconsistent. She cannot possibly have not known about beatings at the time had they happened.”

 

  • It can be seen that the judge’s understanding of the timing of the boy’s allegations, coming after her adverse comments in the May judgment, is but one of the factors relied upon by the judge. It must also be borne in mind that the interview with the boys at the police station on 16th April, whilst happening prior to Parker J’s observations, took place within 24 hours of DJ Hodges indicating that the presumption would be for direct contact to take place.

 

 

 

  • In her skeleton argument in response to this application, Miss Pamela Scriven QC for the father submits that the premium now placed upon ensuring judicial continuity in these cases is partly justified by the fact that it is beneficial for a judge, over the course of successive hearings, to form a developing view of the evidence as it unfolds. I entirely agree with that submission, and Mrs Crowley does not seriously dispute it. It is, in my view, wholly artificial to regard one part of the series of hearings conducted in front of Parker J to be, in some manner, a free-standing, fact finding hearing in which the judge must ignore any previous views she had developed as a result of evidence heard on prior occasions. In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process. Before the start of the December hearings this judge had heard the mother give oral evidence on three previous occasions. At the December hearing she received the material that had been disclosed by the police and watched A’s ABE interview.

 

 

 

  • In her judgment the judge rejected the allegations that were made by the mother having expressly referred, once again, to the “marked inconsistencies” in the mother’s accounts. With respect to A’s ABE interview the judge observed that his demeanour was “quite remarkably flat” with no sense at all of any emotional engagement. The judge observed that “there was every sense of giving an account which had been repeated, perhaps in his own mind, on many occasions, rather than being any form of spontaneous recall”. That description is not challenged within this appeal and we have not been invited to view the ABE interview ourselves. The judge concluded that the father may very well have been over-rough with A on one particular occasion, but she observed the difficulties in dealing with a child whose behaviour is physically very challenging.

 

 

 

  • The judge reviewed the evidence relating to allegations made by the boys more generally, and, in particular, about being hit by the father with a belt. I have already set out the judge’s conclusion on this point which is at paragraph 63 of her judgment. The reasons given by the judge, save for her misunderstanding as to the timing of the first allegations made by the younger boys, is supported by the evidence to which she refers and the conclusion to which she came was plainly open to her on that evidence.

 

 

 

  • Once it is established, as I consider it is, that the judge was entitled to form a preliminary view of the veracity of the mother’s core case following hearing her oral evidence at the two hearings in May, I consider that the criticisms of the robust case management that the judge undoubtedly deployed in December must fall away.

 

 

The nub of this is really the timing of the allegation that the father had hit the boys with a belt, which came right on the heels of  DJ Hodge telling the mother that direct contact would be in the interests of the children (no allegations of physical abuse were being made by mother at that hearing, but they emerged immediately after). At the fact finding all of the mother’s allegations were rejected, and Parker J reached a decision that the mother’s behaviour had gone beyond a misguided belief that the children were at risk or over-protectiveness and into darker areas.

 

The change of residence is interesting – the boys were expressing the view that they did not want to live with their father. The social worker did not support a move, nor did the Guardian. (note the criticisms below of the Guardian)

 

  • Neither the social worker nor the Children’s Guardian supported an immediate change of residence. In justifying her conclusion in favour of an immediate change of residence, the judge explained her reasons for disagreeing with these two professionals as follows:

 

 

“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.

 

73. The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”

 

  • At paragraphs 74 to 76 the judge then set out her conclusions:

 

 

“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.

75. I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment. Much though I would like to give these boys a Christmas as they want it, or as they believe they want it, it is unsafe for them to spend Christmas Day with their mother and her family. Quite apart from anything else, the mother accepts that the two younger children should spend Christmas with the father and his family. They should be told that that is now the parental agreed plan.

76. I am in no doubt that the boys must remain living with their father until this case can be looked at again. I see no chance of any significant change to divert me from that view. I am not inclined to bring this matter back before the circuit judge in January, when I am away, unless there is some emergency which needs to be dealt with. There does need to be some form of further investigation. I am not at the moment persuaded, particularly because an expert of proper calibre has not been identified, that there needs to be any form of psychological assessment. That simply detracts from the judicial role and, after all, it is not experts who make findings and decisions; it is the Court. I would like to see how things settle down.”

 

 

Point 2 – the Judge meeting with the boys

 

 

  • On the morning of the second day of the December hearing the judge conducted two judicial meetings with the children, firstly with the younger two and secondly with A. Depending on the circumstances of any given case, a judge may see a child for a variety of purposes. Such purposes are, however, likely to fall under one or both of two heads, namely providing an opportunity for the young person to say anything that they wish to say to the judge and, secondly, providing an opportunity for the judge to explain the process being undertaken by the court and to otherwise enhance the young person’s understanding of, and feeling of engagement with, the court proceedings. Judges are encouraged to adhere to the guidelines issued under the authority of the President of the Family Division by the Family Justice Council (Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) [2010] 2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence:

 

 

“It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her”

 

  • It is clear that the meeting with the judge occurred in consequence of the judge’s conclusion that such a meeting was likely to be beneficial, rather than arising out of any request from any of the children. The judge indicated both at the October hearing and on the first day of the December hearing that she considered a meeting with the children was likely to be useful. Mrs Crowley submits, and the transcript supports her, that the meeting arose from a desire on the part of the judge to inform the children of the process and of the orders that might be made, rather than to ascertain their wishes and feelings, which were well recorded. On 19th December the judge told the parties that she perceived a need to be open with the children and to “put her cards on the table” at that stage of the process.

 

 

 

  • The judicial interviews were conducted entirely in accordance with the guidelines. The judge saw the boys in the court room, albeit no doubt in an informal configuration, so that the encounters were recorded and have been transcribed. She was accompanied by her usher, her clerk and the Children’s Guardian. First of all the judge saw the two younger boys together. In addition to hearing the boys give a short account of their wishes and feelings, and their reaction to spending the previous night in the father’s home, the judge used the encounter to describe the possibility that the court might order a change of residence and her expectation that the young people, as would be the case with the adult parties, would co-operate with her decision and abide by it. The boys were plain in stating that they did not want to go to live with their father. During the second interview with A the judge adopted an approach which was commensurate with his age and sought to explain to him that he was not “the man of the family” and that it was the grown ups who had to take responsibility for the arrangement of the affairs of the children.

 

Point 3 – the instruction of an expert

 

 

  • Given the extreme behaviour displayed on occasions by A and given the striking content of the mother’s own handwritten notes reflecting on her own behaviour and emotional stability, the question of whether or not the assistance of a child and adolescent psychiatrist or psychologist inevitably arose for consideration. On the first day of the hearing in December the judge indicated that an expert of a particularly high calibre was required. She indicated that she had a particular expert in mind, but, on the second day of the hearing the judge reported that she had made enquiries which had ascertained that that particular expert was not available to take this case on. The judge therefore concluded that no other expert should be considered and the case would proceed without additional expert involvement.

 

 

 

  • That sequence of events had initially been one of the grounds of appeal   [The Judge went on to grant an application in February 2014 for the instruction of a different expert, so that bit of the appeal falls away]  Although any appeal on the question of whether or not an expert should be instructed therefore falls away, Mrs Crowley criticises the judge’s approach to this matter, on the one hand considering that only an expert of high calibre should be instructed but, on the other, taking it upon herself to assess the situation. She submits that as indicating that the judge went outside the boundary of her judicial role in developing an analysis of the family dynamics which, wrongly it is submitted, supported the decision to make an immediate change of residence.

Even though that point did not have to be determined, since it had fallen away by that stage, the Court of Appeal still say that Parker J was entitled to make that decision and did not need to have expert evidence in order to make her decision that in the interim, the children should move from mother’s care to father’s care.

Although I understand the argument as is so clearly put by Mrs Crowley, I do not consider that the judge’s approach to this matter is open to that criticism. The residence arrangements that are currently in place are plainly interim arrangements pending the further assessment by Dr Asen and the further consideration of the court. Given that the judge was required to make findings of fact in December, and given that those findings were so adverse to the mother, the question naturally arose as to whether the children could be emotionally “safe” if they continued in their mother’s care after those adverse findings had been made. The judge having concluded that the allegations made by the boys were not grounded in reality, it was necessary to consider other explanations to explain the fact that the boys had nevertheless said what they had said to the police. Of the limited range of alternative explanations available, the judge’s conclusion, at that stage of this ongoing process, that the allegations in some manner arose out of a dysfunctional relationship with the mother is not, in my view, seriously open to challenge.

 

Any hearing where the allegations are as strong and vivid as this carries risk for both parents – if the Court finds mother’s allegations proven, then father will have difficulty in establishing any relationship with his children. If the Court finds that mother, as they did here, has made them up and drawn the children into a web of deceit, then a change of residence is a distinct possibility – by that time, the children having taken sides so manifestly are going to find a change of residence very difficult. And of course, worst-case scenario is that a Court eventually concludes that the children are so damaged and the parents so culpable that the children can live with neither parent.  Great care has to be taken over making allegations for tactical reasons, rather than raising  a genuine concern. If the concern is genuine, then it is vital to raise it early on in evidence, rather than filing statements that make no mention of something so serious.

 

 

Who’s surrey now ?

Apologies Surrey, you just happen to be one of the few Councils in the country that have a name that lends itself to song titles.

Surrey County Council v S 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

 

I’ll zip in and out of this one, because it is an appeal that raises only minor points (though they might BECOME more significant). This from Ryder LJ

  • As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority’s ‘agency decision maker’ has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (A Child) [2013] EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By section 22(1) (c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.

 

  • There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

 

  • In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

 

  • Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child’s future. In this case, the local authority should have abided by the directions that the court gave which would have facilitated concurrent hearings. If as the local authority submit the mother was not co-operating in permitting medicals to be undertaken that are necessary for the agency decision maker’s decision, they should have obtained a court order requiring the same. If the placement order evidence had been available to the judge, the local authority’s case about adoption and the comparative exercise expected of the judge would have been much clearer. Although not relied upon by Judge Cushing, the absence of the agency decision maker’s decision in this case and the evidence that would have supported the same is an additional reason why it would have been disproportionate to approve a care plan with a view to adoption.

 

  • I am very aware that in making the additional observations that I have about placement order evidence, the statutory framework and regulations concerning adoptive placements are likely to change this summer. When section 22C(9A) of the 1989 Act comes into force there will be associated with it an amended regulatory regime which will require a different decision to be made by the director of children’s services of the local authority to permit the placement of a child with a local authority foster parent who is also a prospective adopter. Nothing I have said in this judgment touches upon how that decision is to be made or how and when evidence of that decision is to be presented to a court.

 

This raises two points

 

1. That the Court of Appeal have remembered the concept of inchoate care plans, finally ! And that the solution that was being mooted in various cases that in order to “hit 26 weeks” the Court hould make a Care Order and come back at a later point for a standalone SGO application (if the relative who came forward or the work to be done with parents panned out) or a standalone Placement Order application (if it doesn’t) is not procedurally fair (as I have been saying for over a year now)

2. That the CoA seem to want Local Authorities to lodge the Child Permanence Report alongside their other papers in the placement order application. Well, have fun reading them, Judges.  If there’s a duller document outside leases, I’ve yet to read one  (and bear in mind that I once worked in contract law and did liability shield clauses).  It also isn’t going to do much for the much vaunted aim of slimming down the bundles.

 

Why might the first BECOME more important? Well, now that the Court of Appeal have frowned on finding of fact hearings for both physical injuries (fracture disputed by parents) and sexual allegations (sexual assault on 14 year old, disputed by parents), it looks like for those of us who are not Jo Delahunty QC, we are going to instead resolve all of the factual disputes at final hearing. Which means, care plans that are framed as several possible alternatives, which means applications to adjourn to give time to reflect on the judgment, time for risk assessments, time for treatment, time for separation to be effected and tested. So when that happens, and Judges start suggesting that all of that work should be done under a Care Order (finish the proceedings, come back if it all goes wrong), those passages might turn out to be extremely helpful. You’re welcome.

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