RSS Feed

Tag Archives: Court of Appeal

Terminating parental responsibility – the appeal

Re D (A Child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/315.html

 

In this case, the Court of Appeal were hearing father’s appeal against Baker J’s decision to use the power in s4(2A) of the Children Act 1989 that a father’s parental responsibility can be removed from him by order of the Court.

 

John Bolch over at Family Lore has done a good piece on this.

http://www.familylore.co.uk/2014/03/d-child-fathers-appeal-against-order.html

 

The legal power is

4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

 

The father in this case was not the most edifying man. He is serving a prison sentence for sexual offences against women. The mother, having ended that relationship wanted nothing to do with him, but from prison the father was making applications for contact with their child.

There are two big arguments in this case  (a) If that s4(2A) power exists, then there must be circumstances in which the Court can use that power, and why not in a case like this?   OR (b) the power in the Act is draconian AND discriminatory, since it presently allows for a mother to ask the Court to discharge father’s PR for bad behaviour, but a father can never do the same against the mother.

[It is for the latter reason that I find myself on father's side as a matter of law, although my sympathies in this case all lie with the mother]

 

The problem for dad’s team was that the nub of that argument, that s4(2A) is discriminatory to men has already been shot down by the European Court of Human Rights

 

The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.

 

Damn. So dad’s team had to take a different tack

 

 

  • The grounds of appeal upon which permission was granted are that:

 

 

 

i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P; 

ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was “a sexual recidivist”; and

iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become “a weapon in the hands of a dissatisfied mother”.

 

[i.e that "there might be some cases in which it is proportionate and necessary to terminate father's PR but (a) they should be very very rare and (b) this isn't it"]

 

Having had to fight, as a result of Smallwood v UK, with one hand tied behind their back, it is not surprising that dad’s team did not succeed.

On the final point, the ‘this could open the floodgates’ one, the Court of Appeal archly point out that two such orders in 25 years doesn’t suggest that the family Courts are about to be besieged by s4(2A) applications.

 

The burden of proof thing is an unusual and intricate argument – in effect it is that the burden of proof falls on the person making the allegation (they have to prove it, the subject of the allegations doesn’t have to disprove it  – a concept that seems entirely lost in LASPO…).

These are the facts that Baker J found, having heard all of the evidence (the important thing here is that some of these findings were his own conclusion rather than mum making allegations and the Court finding them proven)

 

  • The second ground of appeal relates to the judge’s findings of fact and the value judgments he came to upon which he based his ultimate conclusion. So far as the former is concerned this court would have to be satisfied that the judge was plainly wrong in the factual determinations to which he came, that is that there is no objective basis for the same on the evidence that he heard and read, otherwise they will be immune from review. The judge had the benefit “of reading and hearing all of the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days …” (Re B above at [205]). This court will be very hesitant indeed to interfere in that process.

 

 

 

  • It is plain from the transcript that Baker J carefully considered the factual and opinion evidence in coming to his conclusions. It cannot be said that he was wrong to reject the expert evidence that he heard from the jointly instructed psychologist having found that his evidence was naive, complacent, unreliable and at times misleading. He made the following findings about the father:

 

 

 

i) the nature and extent of the facts associated with the father’s criminal convictions included penetrative sexual abuse, inciting a child to engage in penetrative sexual activity, engaging in sexual acts with a child, causing or inciting a child to engage in sexual activity and three sexual assaults; 

ii) he had vacillated over the years between accepting the truth of those facts and asserting his innocence and was presently again asserting that he had been wrongly convicted;

iii) his account of what he called a false confession was wholly unconvincing with the consequence that he had not satisfied the burden under section 11(2) of the Civil Evidence Act 1968 of proving that he had not committed the offences for which he was convicted;

iv) his persistent denials of the validity of the convictions meant that he had repeatedly lied to professionals and to the court (and by implication to his family including his son as that was the factual basis upon which he presented himself to the court);

v) he had lied when he denied giving a previous account to the respondent when he told her that he had been abused in the past by his brother;

vi) having regard to the Lucas direction which the judge gave himself, the father’s lies called into question his reliability as a witness (see R v Lucas [1981] QB 720).

 

  • On the facts that he found, the judge was entitled to conclude (at [51]) that:

 

 

“as he continues to deny his culpability for the devastating acts of abuse he perpetrated on the family, I think it highly unlikely that he appreciates the damage he has caused to every member of the family, or the danger of further damage should he have any further involvement with the family”

 

In this case, it was Baker J who made the finding that father was a sexual recidivist, and the argument was thus that mum (who benefited from the finding) hadn’t had the burden of proof in establishing it.  It would be fair to say that the Court of Appeal didn’t care for that submission.

 

  • It is superficial to say that in this case D’s father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D’s father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising ‘with responsibility’ his parental rights, duties, powers, responsibilities and authority.

 

  • It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father’s alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled.

 

  • Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:

 

“Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasi-inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER:

[21] … The nature of the court’s enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate.

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”

 

Interesting – the suggestion there is that if mum had alleged that father was a sexual recidivist, the burden of proof would be on her, but where as here, the Judge makes the finding of his own motion arising from the evidence heard, there is no burden of proof – it is just the STANDARD of proof that we are concerned with. Was it more likely than not to be the case, and the Court of Appeal saw no reason to deviate from this.  [It is such a narrow technical point that I don't see it coming up very often, but the Court of Appeal have slammed that door shut]

 

Of course, the sort of circumstances (Father injured a child, father is a sexual offender) found here in the two cases where PR was removed don’t come up all that often in private law, but they are rather more common in care proceedings – where of course the mother is represented, will have the powers of s4(2A) explained to her and might be under pressure from professionals to distance herself from father. Might we see that more often in care proceedings?

 

There’s Norway you are serious about a costs order

 

The Court of Appeal in Re S (Children) 2014 set aside another Care Order and Placement Order and sent the case back for re-hearing because the judgment was not sufficiently rigorous and “B-S compliant”. No great surprise there – it is something of a novelty these days when the Court of Appeal uphold a judge who makes these orders. What is a bit peculiar is making an order that the LA pay the appellants legal costs, nearly fourteen thousand pounds.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/135.html

You may recall that the Supreme Court in Re T *dealt with the temptation to make Local Authorities pay costs to parties who won their case but had to pay for their own legal advice, rather than getting it for free, and were very plain that in the absence of bad conduct by the Local Authority, Courts should not make costs orders against Local Authorities just because they have money and the other side had bills.

 

* http://suesspiciousminds.com/2012/08/07/when-they-begin-to-intervene/   is the Re T blog

Why is this one, which involves a series of complex international issues and the father moving to Norway to live permanently during the hearing, different to Re T? Well, I can’t work out why not, reading the judgment.

There was an appeal recently  (Re C 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html ) where a Local Authority got stung for costs, but in that one it was chiefly as a result of the LA counsel having a series of peculiar email exchanges with the judge at first instance, not being properly frank with the High Court judge during their own appeal and not having properly accepted that the evidence at first instance had sunk their case. That, in the view of the Court of Appeal had amounted to bad conduct, and thus a costs order could legitimately be made

http://suesspiciousminds.com/2014/02/06/a-word-in-your-shell-like/

 

In this one though, the judge at first instance is criticised for not giving full enough reasons for refusing further assessment of the father and for not robustly tackling the Re B-S issues in the judgment. That’s not the fault of the Local Authority, that’s due to the Judge.

    1. The father has funded this appeal privately and seeks his costs in the sum of £13,787.70. He does not aver that the local authority have engaged in reprehensible behaviour or took an unreasonable stance in the hearing at first instance to justify a departure from the normal rule that costs are not awarded in children’s cases. However, Mr Bainham argues that the judgment in Re T (Children) [2012] UKSC 36 to this effect is directed at first instance hearings where public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children from pursuing proceedings. Likewise, in the case of an appeal neither should a parent be deterred from challenging decisions which impact upon the most crucial of human relationships. Ms Markham argues the case is not so restricted and resists the application.

 

    1. I consider the question of costs in the appeal to be of a discrete category and the discretion of the Court broad. Re T is distinguishable for the reasons argued by Mr Bainham.

 

  1. In this case, Ms Markham has been forced to recognise the deficiencies of the judgment of the lower court but nevertheless has resisted the appeal. In the circumstances of the father’s limited means, already decreased by his travel from Norway to the United Kingdom to exercise contact, I would grant his application and order costs in the sum of £13,787.70.

 

It is that difficult sum which means that the costs of taking this case to the Supreme Court to correct that decision (which I respectfully suggest is wrong)  dwarf the amount ordered, so the decision will only be appealed if the LA involved decide that there’s an issue of principle involved.  As a long-standing advisor to Local Authorities, I know well that whilst someone at the coalface will say “It’s not the money, it’s the principle of the thing, let’s appeal”, someone higher up the chain of command who makes that decision will say “It’s not the principle, it’s the money, let it go”.   I can see why the Court of Appeal made that decision – the father had won his appeal and yet was out of pocket, Local Authorities (in the eyes of the Courts) have bottomless pockets – job done; but I think it flies in the face of Re T.

I hope they do appeal, and I think they would win; but I suspect pragmatism will win out over the principle of the thing.

If father incurs costs as a result of a flawed judgment, why aren’t his costs paid for by the Court service?  Don’t ever see the Court of Appeal deciding that…

 

The other unusual element here is the Court of Appeal suggestion that the Lucas direction (just because a person lies about X, doesn’t mean that they are lying about the major issue in the case) ought to be expanded

It has become de rigueur for a trial judge expressly to articulate their self direction in accordance with R v Lucas [1981] QB 720 in fact finding hearings. That is, the significance that may or may not attach to the lies told by a party in relation to the injury/ behaviour in question. There is none such in this judgment which deals with outcome. A specific reference to the same is unnecessary but I do consider that it was unrealistic for the judge, and the professionals not to have appraised the same exercise in the context of the non disclosure and/or deceit in question. The fact of a parent’s non disclosure or deceit is not necessarily determinative of parenting capacity or, depending on the circumstances, an ability to co-operate with the authorities.

You have been warned.

[The list of things that need to go into a final judgment now to make it bullet-proof is swelling - good news for those transcription firms that are charging by the page]

Split-hearings and “non-accidental injuries”

The Court of Appeal decision in Re S (A child) 2014.

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/25.html

 

 Very quick summary, to persuade you that this case is worth reading

 

  1. Guidance on whether split-hearings are needed and when (hint, the new Court of Appeal isn’t keen on them any more – expect to be taken to this case during any Case Management Hearing where the issue is physical injury or sexual harm)
  2. Confirmation that for “findings of fact” the appeal test is PLAINLY WRONG, not wrong.
  3. Really important stuff about threshold criteria and notably criticism of the phrase “non-accidental injuries” and the need to go to the statutory construction of the threshold criteria

 

If you aren’t familiar with the term, “split-hearing” is what happens when there is a narrow (although sometimes complex) factual issue to determine in a case involving children, and that resolving that factual dispute is done at a hearing with evidence and cross-examination and a judgment AND THEN the case goes on to a hearing to decide what the Court should do about those facts that have been proved or disproved (what is usually called the Welfare stage)

 

For the majority of children cases, the hearing about the factual dispute and the welfare dispute (What happened, what should happen next) are all dealt with together, but there are some cases where historically the hearings have been split in two (hence “split hearing”) and had a hearing to decide “What happened” first and then “What should happen next” later.

 

Indeed, for a while, split-hearings were very much in vogue and the higher courts were keen on them and critical where they had not happened. There are a few reasons for that

 

  1. If a parent is accused of injuring a child and it can be proved that they didn’t, the sooner that happens the better
  2. Everyone can plan for the future of the child KNOWING what happened, rather than speculating about what might have happened and ending up with plans that are “If X, then what should happen next is…. But if Y, then what should happen next is”
  3. If the Court finds that one parent injured the child and the other didn’t, then the parents have an opportunity to think about whether they want to stay together or split up
  4. If the Court finds that the parent injured the child, there can then be an assessment of whether that is likely to happen in the future – maybe there would be treatment, maybe having had the Court make those findings frees people up to talk about how the injury happened and those discussions can potentially identify the stress points and triggers and avoid it happening in the future.

 

Well, over the last year, it seems that the Courts have been getting cold-feet about split-hearings with hints being dropped that they were being used in too many cases and that Courts must be carefully to ensure that they are only used in cases where it really helps.

 

And of course, nobody has a real clue how a “split-hearing” works in the rigid 26 week timetable – the PLO guidance is clear that the fact that a split hearing is needed or the case involves physical injury isn’t itself a reason to go beyond 26 week. At the moment, it is a struggle to get ONE hearing done within 26 weeks, never mind two.

The Court of Appeal looked at this in Re S, and go the farthest that they have done since the concept of “split-hearings” was introduced to suggest that they have had their day.

 

To give the background, the care proceedings were issued because of an injury to the head of a one year old child, resulting in two skull fractures. The Local Authority considered that the parents had caused/contributed to the injury (more of this later), the parents saying that this was an accident or some other medical explanation.

 

In the case, there was an account of the evening leading up to the injury which was demonstrated to be false  (as the Judge and the Court of Appeal remind us, just because a person is caught out in a lie on one thing does not mean that they are lying about everything else)

 

This was an appeal by the Local Authority, because the Judge concluded this

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

They lost the appeal, the Court of Appeal found that it was misconcieved and there was no reason to interfere with the findings. [In essence, the LA had put all of their eggs in the "deliberate harm" basket and didn't satisfy the Judge of that, and hadn't sufficiently explored the possibility that there could have been some form of negligence or carelessness without a deliberate element] 

 

Guidance on split-hearings

 

 

  1. It is by no means clear why it was thought appropriate to have a ‘split hearing’ where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.
  1. I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court’s consideration in this judgment. An example of this court’s guidance in relation to those proceedings can be found in In the matter of C (Children) [2009] EWCA Civ 994. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.
  1. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.
  1. Social work assessments are not contingent on facts being identified and found to the civil standard (see, for example Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott-Baker J at [34] and [35]). That is the function of the court not a social worker (Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14 per Lord Hope of Craighead at [120] and [122]). Social work assessments are based upon their own professional methodology like any other form of professional risk assessment. In care cases, an appropriate social work assessment and a Cafcass analysis should be undertaken at the earliest possible opportunity to identify relevant background circumstances and context. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]).
  1. It may be helpful to highlight the fact that a decision to undertake a split hearing is a case management decision to which Part 1 of the Family Procedure Rules 2010 [FPR 2010] and Pilot Practice Direction 12A ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management (the PLO)’ apply. A split hearing is only justifiable where the delay occasioned is in furtherance of the overriding objective in rule 1 FPR 2010, that is:

i) as a consequence of active case management by the court which includes in accordance with rule 1.4:

“(a) setting timetables […],

(b) identifying at an early stage […] the issues,

(c) deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

[…]

(i) considering the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

[…]; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.”

ii) in accordance with the child’s welfare having regard to the timetable for the child within the meaning of that concept in para [5] of pilot PD12A; and

iii) in accordance with the timetable for proceedings within the meaning of that concept in para [5] pilot PD12A.

  1. On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. Given that by rule 1.3 FPR 2010 the parties have a duty to help the court to further the overriding objective, it is all the more surprising that one of the submissions made to this court was that a split hearing was inappropriate. That professional analysis should have been offered to the court below. The benefits and detriments of such a course, if proposed, should be analysed by the children’s guardian. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what has always been the good practice of the court which is to settle the issue to be tried on the face of the order

 

 

Of course it must be right that the Court ought to have clear thinking and rigour before listing a split hearing and deciding what the benefits are, that’s hard to argue against. But this seems to be a heavy hint that split hearings will rarely be effective.

 

I have to say that I struggle with this – there clearly was a discrete issue here. If the parents had done nothing wrong, there was clear advantage for everyone in deciding that as soon as possible. If there had been some wrong-doing, then it was important to determine what that was and allow the parents to make decisions about what they put forward as the best future care of the child at the earliest opportunity. 

 

This is exactly the sort of case that split-hearings were meant for, and one has to ask – if the Court of Appeal think a case like this isn’t right for a split hearing, is one left with any split-hearings in public law cases?

 

Probably not.

 

So, at a final hearing on week 26, when the Court decide that a child suffered a skull fracture and that this was caused by dad but mum didn’t know about it and did nothing wrong, what exactly is supposed to happen?

 

Are the Courts going to say that mum ought to have separated from dad and gone it alone months before the Court made its decision? Or is mum to be given half an hour with her lawyers to make a decision whether to leave dad or not?

 

 

 

Non-accidental injury

 

Another interesting and potentially important development in the case is the discussion about “non-accidental injury”.

 

What the Court was interested in was whether this term was being used in a sloppy, “catch-all” fashion, and indeed being used differently by the medical professionals and the social work professionals.

 

When the phrase “non-accidental” is being used, is what is meant simply that the injury is not a result of an action, or does it mean that the parent is culpable, or that the injury was caused deliberately? 

 

It seems that the Local Authority in the case were putting the case on the basis that if the medical evidence was that this was a “non-accidental injury” that the parents had thus inflicted the injury.

 

Going back to the judicial finding, it is obvious that the Judge at first instance (and the Court of Appeal did not interfere with his discretion) did not make THAT finding

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

 

On the face of it, that seems unsatisfactory to both sides. If there was an accidental or “innocent” explanation for the injury, then the threshold criteria ought not to have been made out -  whilst the skull fractures were significant harm, the harm is not attributable to the care given or not given by the parents not being what it would be reasonable to expect a parent to give. So  from the parents viewpoint, why did the Judge find that threshold was met? And from the LA viewpoint, if the Judge did not consider that there was an accidental explanation and found threshold met,  how had the injuries occurred? How can anyone plan for the future on that basis?

 

 

 

Is there anything else that the Judge found that helps in understanding what happened to this child, and from there to see whether there is any future risk?

 

  1. It was a conceded fact before the judge that a false history of how the harm occurred had been given at the hospital. The false history was subsequently repeated in various degrees of detail to suggest that the child had been in a bouncer suspended from a door in the flat at a height of about half a metre from the ground when a strap broke, the bouncer fell and the child hit her head. That false history was discarded by the family when the child’s father voluntarily went to the police and said that the history previously given was not true. It was also discovered that the strap had been cut (it is said by grandmother) to make it look like it had snapped. A new history was then proffered by the family which was given to the judge in evidence. The evidence was that father was standing holding S in the kitchen behind mother and grandmother when S wriggled and in some way fell to the floor.
  1. With the possible exception of grandmother’s partner, who was not said to have witnessed anything of relevance, the judge found the family’s account of what happened on the night in question including the timings to be wholly unconvincing. He regarded the grandmother as a particularly unconvincing witness and was satisfied that father, mother and grandmother had conspired to attempt to exculpate father from what had occurred.
  1. The judge’s ultimate finding was that the grandmother and the parents had lied to the hospital and again to the police and the court i.e. both histories were untrue. He found as a fact that the court had not been told the truth about what had occurred. He found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. Having read and heard the evidence he was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult. The case management order which purported to record the findings is erroneous if it was intended to suggest otherwise.
  1. The judge’s conclusion left open the question of how the injury occurred. The judge put down a marker to himself for the future welfare hearing that what had happened “may well involve negligence”. It is clear from the terms of the judgment that he did not find that the parents or any of the adults had been negligent but he opened up that possibility no doubt for future examination in the light of any other evidence that the court may consider at a subsequent hearing.

 

 

This is what the Court of Appeal had to say  [underlining mine for emphasis]

 

  1. It may be obvious to the interested bystander that there was a theoretical range of possibilities relating to what had happened to S: from accidental harm through to deliberate infliction of injury, but that was not the way the case developed in evidence. The neuroradiologist who gave evidence to the court gave his opinion about the range of possibilities in the following terms:

“The skull fracture can occur as a result of accidental injury. In this context fracture most commonly arises from a fall from a carer’s arms and results in an un-displaced unilateral fracture most often of parietal or occipital bone. Skull fractures may also occur as a result of impact in the context of non-accidental head trauma. If the injury is non-accidental, a fracture may also be displaced, comminuted, involves (sic) more than one bone or if there are multiple fractures in the same bone, it is more likely that the injury is non-accidental in origin”

  1. The local authority chose to pursue deliberate infliction of injury with the witnesses at the hearing and both at that hearing and before this court equated the term non-accidental injury with infliction. The local authority submitted that infliction was not necessarily deliberate infliction, but it is by no means clear that anyone else defined the terminology in that way and that characterisation of the evidence ignored the statutory formulation that the local authority needed to prove. This court was helpfully taken by counsel to the questions put to the witnesses which appear to demonstrate that the local authority assumed that ‘non-accidental injury’ if proved would be deliberate. They did not adequately explore the circumstances of the adults’ care other than to cast doubt on both of the histories that had been given nor did they explore what has come to be known as the attributability element of section 31(2) of the Act. Whether there had been reckless or negligent acts and omissions or what the neuroradiologist meant by the terminology that he had used or the causative mechanisms he had described remain in doubt.
  1. This court has sympathy both with the judge and the advocates in a situation where the direct evidence from those who were present is false and the local authority rightly assumed the burden of demonstrating that. In doing so, however, they appear to have lost sight of the rest of the case and of the statutory formulation in section 31(2) of the Act.
  1. The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  1. The court’s function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
  1. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
  1. This court has not been addressed about the volume of guidance in materials issued by professional bodies (including the medical Royal Colleges) and Government which makes reference to ‘non-accidental injury’. Indeed, counsel for the local authority went so far as to submit that none of that material provided a generally accepted medical or legal definition of the term. Whether that is right or not, it is not necessary for this court to analyse that material because all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned. If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.
  1. In this case, the judge was careful to sever the question of whether the harm was an example of a true accident i.e. a chance happening that is by definition unexpected and unintentional, from the question of attributability which in the circumstances of this case was said to include perpetration of harm and lack of protection from harm. The local authority’s case was of (deliberate) infliction by one or the other parent and that was the case they put. They did not succeed in establishing that case. No other possibilities were sufficiently examined to enable the judge to make conclusions upon them. The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible. Accordingly, there was no inconsistency between the findings and the evidence and the local authority’s description of the findings in the grounds of appeal are misconceived.
  1. The judge examined what were conceded before him to be the false explanations for the injury given by those who took S to the hospital which were subsequently repeated by other members of the family and also what was said to be the true history of the events of the night in question which he decided was also false. He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas [1981] 1 QB 720). Far from failing to consider drawing an inference of attributability from the repeated lies that were told, the judge overtly considered the options and having given himself a Lucas direction concluded that the lies were more likely to be related to their inexperience as parents. Having heard the parents in evidence the judge declined to draw the inference that they had deliberately inflicted injury but did draw the inference that they had failed to protect S by delaying the obtaining of medical treatment.

 

 

There is a big hint here for advocates, particularly Local Authority advocates that in any case where harm is disputed, one has to avoid tunnel vision and just exploring the binary possibilities  (the parents deliberately injured the child v this child had an accident which simply could not have been helped) and to explore all of the middle ground, and focus particularly on not just the harm but how that harm might, or might not, have been attributable to the parents care.

conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)

 

The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue.  In the care proceedings, the Judge was weighing up the needs of the children and reached the conclusion that adoption was in their best interests IF and only IF, the adopters that the LA would find in the future would meet a series of conditions. The Judge then reserved the case to herself for any future applications and made a Placement Order with a series of conditions – if the conditions weren’t met, the placement order couldn’t be exercised.

“2. The court has accepted the list of attributes of prospective adopters for M and K recommended by the court appointed expert psychologist, Mrs Buxton, that as a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be:

a) two in number;

b) energetic;

c) free from attachment difficulties of their own;

d) experienced carers;

e) fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular;

f) there must be no other children within the home

g) ready, willing and able to promote direct face to face contact with their brothers, B, B and L preferably four times per year but at least a minimum of twice per year.

3. The court was satisfied on the basis of all the evidence before it and on its analysis of the welfare checklist issues that adoption of M and K was proportionate and the most appropriate care plan to promote and safeguard their welfare, save that the care plans are approved and placement orders granted on the basis that the list of attributes set out above is adhered to by the local authority.”

The LA appealed that, on the basis that this was law out of thin air (no such thing as conditional placement orders) and that this was in complete breach of the separation that Parliament had set up between Courts (decide the facts, make the decision about applications and orders) and LA’s (deliver the orders on the ground and make day to day decisions)

The Court of Appeal having forgotten / ignored that principle entirely in Neath Port Talbot, found it again down the back of the sofa.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1611.html

    1. All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

 

    1. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

 

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority‘ [emphasis added].

The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.

    1. When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

 

a) vary or revoke the placement order [ACA 2002, ss 23 and 24];

b) make orders for contact [ACA 2002, s 26].

The position is as described by Wilson LJ in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 (set out at para 20 above); the only opportunity that a family court has to consider the merits of a particular person to adopt a child who is the subject of a placement for adoption order occurs when that person applies for an adoption order.

    1. In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

 

    1. The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

 

a) the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

b) the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

c) in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

d) recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

    1. The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

 

    1. The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

 

  1. In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

 

Hooray say the local authority, wiping their collective brows with a polka dot handkerchief.

But stop, mother had anticipated this, and cross-appealed on the basis that if the conditions didn’t stand, the Placement Orders should be set aside – the “nothing else will do” test not having been met

 

2. The Cross Appeal: ‘What is a judge to do?’

    1. On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

 

    1. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

 

‘The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ [emphasis added]

    1. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

 

    1. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

 

    1. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

 

    1. I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

 

  1. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

 

So, although the LA won on the principle that conditions couldn’t be attached to a Placement Order, it was the most pyhrric of victories, since that persuaded the Court to nuke the Placement Order.

 

Look at that last sentence – it is a masterpiece of understatement.

 

At the moment, we have a national crisis of adopters – far more children need places than there are places for them. Do you honestly think that anyone who is approved as an adopter, who are in high demand and sought after by multiple local authorities for multiple children, are going to commit to a process of matching with children WHEN THE CHILDREN may not be approved for adoption? No way.

Assuming that you get someone nuts enough to do that, what would the process actually involve?

1. The LA revives their application for a Placement Order

2. The mother, the father, the Guardian and Judge all say – we need to see as much detail as possible about the adopters

3. Every inch of that information is pored over, critiqued, nit-picked looking for flaws.

4. If there has been  passage of time in the search, one of the parents will revive their desire to be reconsidered or to put forward a family member

5. The parents may not get public funding (stand-alone Placement Orders aren’t non-means, non-merits public funding, you are at the whim of the Legal Aid Agency)

6. In order to get the Placement Order, the Court will want to be satisfied that these carers ticked all of their criteria

 

All of this being before the child can be placed with the carers identified. How is that sitting with no delay?

 

 

How is this not moving the assessment of adopters and the matching of children with adopters away from qualified professionals and into the Court? How does this square even for a second with the view in the Children and Families Bill on Courts backing the heck out of care planning?  (I know, the Bill isn’t law, but that hasn’t stopped us wholesale adopting the 26 week proposal and ramming that through – why is the other major limb, care planning being firmly back with LAs being utterly ignored?)

I have no problem with the Courts having jurisdiction over this stuff, if Parliament debates it and gives it to them, but not like this. An important decision for any family practitioner – it is another tool in the argument toolkit for fighting a Placement Order, and another obstacle for LA’s.

 

The leave to oppose Tsunami

 

As anticipated,  since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. I understand that Ryder LJ has already spoken of a “tsunami” of appeals which are heading towards the Court of Appeal.

Here are two :-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1481.html

Re L (Leave to oppose making of adoption order) 2013

The Placement Order had been made in Feb 2012 and the child placed with adopters in March 2012 (so we are getting on for a year and a half in placement). As the Court of Appeal observe, an unusual feature of the case is that the adopters had separated in the course of that placement – somewhat peculiarly they were jointly pursuing the adoption application though had not decided between themselves who the child was to live with. Early on in the court proceedings the prospective adoptive mother dropped out, leaving Mr X as the prospective adoptive father to carry on with the adoption application as a sole carer.

 

The Court of Appeal considered that the trial judge had not properly weighed the ultimate prospects of M succeeding in her application given the backdrop of uncertainty and change in the prospective adopters situation.

 

    1. When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.

 

    1. The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra) about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B [2013] UKSC 33.

 

    1. An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.

 

    1. It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.

 

    1. Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.

 

  1. I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).

 

NOTE that this case didn’t get sent back by the Court of Appeal for re-hearing (i.e the judgment needed work) but the Court of Appeal instead granted the leave, and the contested adoption hearing will therefore take place. (That’s a step farther than Re W – though that case clearly laid the foundations for the Court of Appeal making such a decision). The Court also emphasise that although the impact on the placement isn’t as heavy a consideration for the second stage (the welfare decision) as previously considered, the stability and duration of the placement could be weighed in the balance when determining the solidity of the mother’s application (an otherwise solid application could flounder on that particular dimension)

    1. Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.

 

  1. I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C (A Child) [2013] EWCA Civ 431 was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.

 

[It is interesting of course that two years of placement was considered this year, by the President no less in Re C, to be quite a clear cut-off point beyond which the Court would not possibly tamper with the placement, and six months later an 18 month old placement seems to count for very little : " C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?“: )

The next one, the Court of Appeal dismissed the appeal – so one looks for clues and guidance within it

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1480.html

Re D (Leave to oppose making of an adoption order) 2013

The child had not lived with mother since May 2011, and Placement Order was made on 18th May 2012, placement with adopters Sept 2012  (note, six months LATER than in the appeal above that was granted)

The original court was satisfied that there had been a change of circumstances on mother’s part, thus satisfying the first limb of the two stage test, but decided that the circumstances did not justify reopening the case. Fairly naturally, in the light of the jurisprudence in the latter part of this year, the mother appealed.  In fact, she got silked-up (which suggests that public funding MIGHT have been obtained for her, would be interested to know that)

The appeal was effectively on the Re B-S, Re G and Re W grounds, that the Court had not properly weighed the mother’s prospects of success (which don’t have to be for return, they can be in persuading the Court to NOT make the adoption order), that the positive aspects of an alternative to adoption and the negative aspects of adoption had not been properly weighed.

    1. Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.

 

    1. Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?

 

    1. In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. HHe He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.

 

    1. It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.

 

    1. I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.

 

  1. I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.

 

As seems to be happening a lot in the latter part of this year, the decision then turns on the precise detail of the judgment, rather than principles which can be extracted. In Re B-S, the Court of Appeal felt that the judgment was robust enough, in Re W, they didn’t. In Re L they felt the judgment was wrong, in Re D, they didn’t.  {Comparing these two cases, in one the change was qualified by later blips  – Re D, the other wasn’t – Re L, and in one the placement was stable and secure – Re D, and in the other it was rather more uncertain Re L – so even without the judgments, one gets some sort of flavour of the task faced by mother}

I am beginning to wonder whether the publication, in anonymised form, of the original judgment ought to be considered with such appeals. Where the appeal turns on the quality and wording of the judgment, and Judges up and down the country need to know what “passes” and what “fails” it might be helpful to see them in full.

 

 

It isn’t Re JB, it is Re C

The Court of Appeal case I talked about at the weekend, which decided that the original Judge had not been wrong in making a Placement Order (and thus showing that the Court of Appeal aren’t just going to say “no” to every single Placement Order) is now out on Bailli and is Re C (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1257.html

The predominant challenge to the Placement Order, both at trial and in the appeal came from the maternal grandmother, EB, who had sought a Special Guardianship Order instead. She had been assessed by the LA unsuccessfully but was supported by an Independent Social Worker.

  • The judge held ([70]) that there were “a number of very important points to be made in [EB's] favour”. She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.
  • However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB’s suitability. These were:

    i) He doubted ([72]) EB’s ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be “confusing” for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

    ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB’s ability to manage.

    iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

    iv) He was concerned about EB’s relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG’s concern about a recent incident when J was taken to EB’s home and appeared to be upset.

    v) Finally the Judge pointed to what he described as a “lesser concern”. He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as “not a positive attitude” to the father. The judge later said that his decision was primarily based on the first four of the concerns.

     

  • Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:

    i) A suggested lack of emotional warmth from EB towards J;

    ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

    iii) An incident involving EB’s use of a knife in 2007 in a wholly different situation.

     

  • Having considered these matters the judge expressed his conclusions about EB at [80] as follows:

    “What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J's] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J's] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey

The Court acknowledged that the Judge had not carried out the sort of Re B-S or Re G style balancing exercise, holistically comparing the relative merits of each of the options against one another, rather deciding the case in a linear fashion by dispensing with the mother, then grandmother and thus leaving adoption as the only option ‘left on the table’ .   We know that the Court of Appeal have recently determined that this is wrong and that many (I count seven) Placement Orders have been refused or sent back for re-hearing on that basis.

The Court identify that the structure of the judgment is badly flawed

  • I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is ‘linear’ in form, despite the fact that, at paragraph 63, the judge identifies

    ‘one alternative here is the local authority’s care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J’s best interest. To decide that I have to look at the alternatives.’

    What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

     

  • Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of ‘approving a care plan for adoption’ by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.
  • By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.
  • The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages (‘care order’ and only then ‘adoption’), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind

However, it seemed that the Court of Appeal did not feel that the decision itself was the wrong one, and thus find themselves between a rock and a hard place. On the one hand, the principles of Re B-S haven’t been adhered to, on the other, the final outcome appeared right to the Court of Appeal. Should they send it back for re-hearing because of procedural flaws, or take a pragmatic approach that despite those flaws the right decision was made?  (Arguably, how CAN the right decision have been made if the process was so flawed? )

The Court of Appeal thus had to do some rowing  (both in the debating sense of the word and the moving oars in a boat metaphor sense) to help retrieve the position.

  • In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:

    a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

    b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

    c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

    d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J’s welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

    e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB’s ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child’s best interests.

  • In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge’s decision was proportionate and, in the context of J’s welfare, is not ‘wrong’. As a result of those conclusions, I would dismiss this appeal.

I see a future of Local Authorities waving this decision and parents waving Re B-S.  The tranche of post Re B-S appeals is going to be vital in understanding whether the Court of Appeal requires perfection in terms of the holistic balancing exercise, or whether as here if the Court of Appeal can look at the judgment and deduce that a holisitic exercise would have achieved the same outcome the Judge was not wrong.

I am slightly surprised that the Court of Appeal didn’t lay down a marker that this case was considered exceptional because not all of the key judgments had been available to the trial judge at the time of making his decision (although that didn’t prevent the other seven cases) and that for all cases where judgment was given post Re B-S, the expectation would be that any judgment that did not follow those principles would be likely to be wrong. Despite my surprise, the judgment DOES NOT DO that, and is thus arguably authority for the Court of Appeal looking beyond the mere structure of the judgment and into the facts of the case to see whether the decision itself appeared ‘wrong’

No wonder you’re late – why this watch is exactly two days slow

Yet more quest for perfection from the President. Mark this well.

 

Re W (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.

 

    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.

 

    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.

 

    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

 

    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.

 

  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

 

Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?

 

Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?

 

    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.

 

    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.

 

    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):

 

“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.

 

    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.

 

  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.

 

The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.

 

So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

We’re going to need a bigger bundle”

 

The Court of Appeal decision in Re W (A child) v Neath Port Talbot Council 2013

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1227.html

 

You may recall all of the President’s guidance recently about how bundles in care proceedings were going to become lean, mean fighting machines, stripped of all excess information like a formula one racing car; well that took a bit of a hit with Re B-S, which required that Local Authorities and Guardians unpackage all of the concepts that were traditionally contained in shorthand phrases and lay them out for inspection, not only in general but in application to the particular child in the case, and now Neath Port Talbot expands final evidence even further.

 

The Court of Appeal lead judgment is given by Ryder LJ, but the chilling /delightful bit  (depending on which side of the fence you sit on) is from the very small judgment from the President

I agree with the judgment given by Ryder LJ. There is nothing I can usefully add except to emphasise the importance of the principles he has set out so clearly. His judgment explains and elucidates the respective functions of the court and the local authority in care cases. It complements the recent judgment in Re B-S, which explains and elucidates what the court requires from the local authority (as well as from others) in those care cases where the plan is for adoption. The principles in these two judgments will for the future inform practice in all care cases

 

So, this isn’t going to be case-specific stuff, it is general principles.

 

The appeal itself covered three areas, and I’m largely going to concentrate on the middle one.

 

1.    A Judge who wanted to embark on a finding of fact exercise that the Local Authority and the mother didn’t seek (largely because a psychologist expert in the case urged the Judge to do so)

2.    The extent to which Local Authority final evidence should set out not only the detail of their own care plan, but the detail of how they would manage the case and what resources would be provided under the various other placement options for the child.

3.    What the Court is to do where the care plan they have in mind is not the same as the Local Authority’s care plan.

 

On point 1, which frankly bogs down in a lot of detail the other more important principles of the case; this would normally be a fascinating subject to write about, I just wish that it had arisen in a case that was confined to that issue.  It was a peculiar one, and the Judge ended up making a Care Order with a care plan that the child would be at home with mother and receiving significant support.  Neither the LA nor the mother wanted a care order, and the Judge effectively made a Care Order and endorsed a care plan that wasn’t actually placed before her.

 

The Court of Appeal felt that it WAS open to a Judge to decide what facts needed to be determined, notwithstanding that that view wasn’t shared

 

  The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek.

 

On point 3, the Court of Appeal spent some considerable time analysing what is to be done where the Court having heard all of the evidence and argument wants to make a Care Order with a care plan that the Local Authority do not put forward.

 

“In relativity, Matter tells Space how to curve, and Space tells Matter how to move. The Heart of Gold told Space to get knotted and parked itself neatly within the inner steel perimeter of the Chamber of Law”  - Douglas Adams

 

 

In the Children Act 1989,  the Courts tell a Local Authority what order they can have, and the Local Authority tell the Court what they will do with that order. The Court of  Appeal just effectively told Local Authorities to get knotted.  I’m paraphrasing, of course.

 

We’ve historically had authorities that show that the Court can invite the LA to change their care plan, and that LA’s should listen carefully, but nothing that settles what happens when immovable object meets irresistible force.

 

This is what the Court of Appeal say

 

  It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court.

  Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question.

 

 

Yes, but what is the Court to ACTUALLY do? Here is Ryder LJ’s final solution, in addition to a hint on judicial review (although that begs the question of who the hell would issue a JR to make the LA’s order for a child at home a CARE order rather than a Supervision Order. I’m damn sure the parents won’t. Ryder hints that the child’s representatives might well be the ones to do so…I am not so sure about that)

 

 

The court considered the invitation to give an indication to the local authority and allow them to reconsider their position but came to the conclusion that even in a case where the child is to remain with a parent the proper administration of family justice and the detrimental effects of continuing litigation required immediate and timely action. Partnership working sometimes needs sanctions for compliance. In the unlikely event that a local authority declines to abide by a judge’s orders and directions in the future, the judge should inform the local authority’s monitoring officer appointed under section 5 of the Local Government and Housing Act 1989 to make a report to the authority with the intention that the authority is brought back into compliance.

 

Leaving aside issues of what the heck the Monitoring Officer could actually do to make the LA change their mind,  the “I’m telling on you” playground vibe to it, the  issues of conflict that this throws up (a substantial proportion of Monitoring Officers being the Head of the LA legal department) and that none of this is going to be done quickly, this seems very much to me like the Court of Appeal giving the green light to Judges who seek to impose a Care Order with a plan of the child being at home on a Local Authority who’s position is that if a Care Order is made the care plan should be that of separation.  How is this not the Court writing their own care plan, and the separation of roles being torn up?

(I happen to think that there might be very good policy reasons for changing the Act so that Courts have that power, but that’s not the way the Act is constructed. This is a power grab, of the kind that the House of Lords kicked into touch with  starred care plans.

I do wonder if Neath Port Talbot will appeal that aspect. For my mind, if a Local Authority plan is for placement with mother, then the Court can (though should do so reluctantly) impose a Care Order on them when they asked for a Supervision Order.  If the PLAN is separation, then the Court’s power is limited to inviting the LA to change their plan, making an ICO if the case warrants that, or making a Supervision Order.  It now seems to be that the Court will simply have the ability to keep the LA in after school until they agree to change their plan.

Of course, being cynical, I have suspected for a while that a consequence of the revised PLO will be more rehabilitation cases which haven’t been properly tested over time, and to avoid rafts of Supervision Orders coming back when they don’t work, the Courts would eventually shift to making Care Orders at home, something most LA’s are very apprehensive about. This paves the way for that. 

And I can see some merit in it – if the Court concludes, having done the Re B-S analysis that the risks are manageable at home, but not under a Supervision Order (say that it is obvious that the need for support won’t dissipate after a year, or even 3 years, or there is a need for the LA to share PR) then there will be circumstances in which a Care Order is the better order  – notwithstanding that the LA won’t want it, and the parents certainly won’t want it (the Care Order giving the right for the LA to remove the child without going back to Court, that’s no something you want hanging over you).  The circumstances in which a Local Authority would not take up the Court’s invitation to change a care plan are fairly limited, it is never something done lightly and is never a decision made by the social worker or manager alone – it goes very high up the chain of command. 

Anyway, on to the big bit, which fortunately can be summarised in fairly short order. Underlining is mine, for emphasis

 

101. The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority make it clear that they will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case they can be subjected to challenge in the High Court within the proceedings. If and in so far as the local authority are of the opinion that they need to change a care plan option approved by the court once the proceedings are complete, they are entitled to do so and must do so in accordance with the processes laid out in the regulations. If they do so without good reason they will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.

 

 

Thus, as well as now having to encapsulate in their final evidence an analysis of the advantages and disadvantages of each possible placement outcome available for the child, the LA have to in effect submit a care plan for each of those options

 

AND

If the Court give a judgment and ask the LA to file an updated care plan based on those evaluations, the LA must do so.

Those are the two bits that the President endorsed in his brief paragraph, and thus become applicable law to ALL cases, not restricted to this one.

Thus, having rewritten final evidence for cases to include Re B-S compliance, those statements are now going to have to be written again to make them Neath Port Talbot compliant.  And if the evidence is already lodged and the parents have responded, how Article 6 compliant is it for the LA to file such vital addendum evidence and the Court move to final hearing without the parents having had opportunity to respond?  (I suspect the 26 week target statistics are going to take a nose-dive in the interregnum period)

 

 

 

 

“This is some serious B-S….”

 

The Court of Appeal decision in Re BS (Children) 2013  is out

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1146.html

This case involved an appeal against a decision to refuse leave for a parent to oppose an adoption application, a Placement Order having already been made. Prior to Re B, this would have been an appeal unlikely to have been given permission, let alone succeed. The law on the test for leave to oppose an adoption application is well-established, and is plainly a very high test for the parent to satisfy. (Some might possibly argue that the existing case law sets a test that is nigh on insurmountable)

The Court of Appeal however, set out the wider context of an appeal dealing with adoption post Re B, and the general mood music of the higher courts in recent days that not sufficient attention is being given to what a serious and grave order a Placement Order or adoption order is.

 

Adoption – the wider context

·  Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.

·  We – all of us – share these concerns.

 

The Court of Appeal go on to set out the law as refreshed and refined by Re B, that adoption is the last resort and that it can only be the plan where “nothing else will do”

But this is new , though using Lady Hale’s judgment in Re B as a beginning:-

 

29 It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.

 

Hmmm. That seems sensible on the face of it, but of course a Local Authority could manage any risk at all whilst keeping the family together, if they kept the family together in a residential assessment centre permanently, or they had the family living at home with 18 hours a day visiting from professionals. So clearly there has to come a point in which resources play a part. It would not be reasonable for a Local Authority to spend millions on one family, probably not reasonable for them to spend half a million on one family, just to keep them together. The crunch therefore comes at where what a parent and Court consider to be reasonable allocation of resources to keep a family together clashes with what the Local Authority consider reasonable.

It seems not quite right to me to suggest that the LA cannot run such an argument – of course, the Court must have the ability to reject it and tell the Local Authority that their plan is refused, to make a less interventionist order and that the LA then have to make the best of it. But this formulation rather suggests that the Court can dictate the plan of support in the community.

I am struggling to fathom why a Local Authority should not press for adoption where they are unable or unwilling to support another form of order – surely that is the exact situation in which they would. The Local Authority can’t seek a Placement Order UNLESS they are satisfied that nothing else will do.  

In layman’s terms, what this really means is that if the Court is faced with a plan that allows the family to be together, the LA cannot oppose that plan on the basis that the resources required to make the plan work would be unreasonable.  That is a major development.

It seems to me that this would hold up for reasonable resource expenditure, but particularly in times of austerity, I suspect that Local Authorities won’t be quietly taking the “blank cheque” approach hinted at here. I also suspect that Barry comes into play in any later challenge.

Moving on, the Court of Appeal gave guidance about the evidential requirements for the Court to make a Placement Order and endorse a plan of adoption. It is fair to say that the Court of Appeal hint that Courts have become too lax, and too reliant on stock phrases and formulas

Adoption – essentials: (i) proper evidence

·  First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

·  Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

·  Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

·  It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.

 

 

The Court of Appeal go on to address specificially a type of formulation in social work or guardian evidence as to why adoption is required and reject it as being wholly insufficient. Raise your hand if you’ve never seen the case for adoption set out in this type of way

 

23 The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]‘s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24 With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25 The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26 In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

·  Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

·  This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

I don’t disagree with any of this – we do need to move away from simply dealing with the enormity of adoption by the stock phrase “It is a draconian order, however”  and actually dealing with the rigorous arguments for and against, for the particular children in question.  That is going to require substantially more detailed social work and Guardian statements (at exactly the time when the push is towards slimmer and shorter statements)

Next topic – not just the LA making their case better, but judges producing much better judgments.

Adoption – essentials: (ii) adequately reasoned judgments

·  The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

·  The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

·  In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

·  We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

·  McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

·  We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

I again, don’t disagree with any of this. I do wonder whether in reality this means that Placement Orders can’t be determined by the Family Proceedings Court – whilst they could make the right decisions, that level of intensity and rigour and analysis in a judgment seems very arduous for a Bench.

At this point, the Court of Appeal clearly recognised that their direction of travel might be perceived as oppositional to the revised Public Law Outline, and are at pains to point out why it isn’t.  (Many people, myself included, considered the revised PLO to be largely about a rush to adoption)

 

Adoption – the current reforms to the family justice system

·  First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

·  Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

·  We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

 

My quick view on this – we might finish cases in 26 weeks, but they will be coming back for another round after LA plans rejected and a trial at home hasn’t worked (I hope I am wrong)

With all of that in mind, it isn’t entirely surprising  that the Court of Appeal looked at the Warwickshire and Re P tests for leave to oppose adoption, and wrote a slightly  new one reinforcing a rather different emphasis

Section 47(5) of the 2002 Act – the proper approach

·  Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.

·  There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

·  In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent’s ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child’s welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

I suspect one would see more successful leave to oppose applications. What that will mean for adoptive parents is yet to be seen – also what it means for the Legal Aid Agency who historically don’t fund these applications is yet to betested.

The Court of Appeal go on to set out that the test for the appellant court was whether the Judge was “wrong” rather than plainly wrong, but actually dismiss the appeal itself.

 

“Man of Straw and costs”

Making a costs order in private law proceedings against a man with no ability to pay – the Court of Appeal decision in Re G (Children) 2013

http://familylawhub.co.uk/default.aspx?i=ce3352

Although the appeal was from a decision made by a Court local to me, I have had no involvement of any kind in the case.

The proceedings related to long-running private law proceedings, and the Court findings in relation to father’s conduct were pretty scathing

Within the proceedings he had made very serious but utterly groundless allegations against the mother, which obviously took time to resolve and were unpleasant.  He raised an entirely false allegation of racism against the NYAS worker who prepared a report in the case (raising this only after the report was received and unfavourable to him) , had effectively been using the court proceedings to harass and intimidate the mother, had made groundless complaints about her to the police

in short she considered that the length of the proceedings, and the fact they had been driven to consider matters of detail at every turn, had been caused by the father’s actions and that he was engaged in a course of action designed to manipulate and harass the mother by using the proceedings as his weapon of choice.

 

It is not altogether unsurprising in that context that the father lost his case, and was made subject to a section 91(14) order exercising judicial control over his ability to make further applications.

The Court of Appeal were entirely satisfied that all of this was justified by the findings that the Court had made, having heard the evidence.

The next issue was however, the Judge having made a costs order against the father. The mother was publicly funded, the father acting as a litigant in person, and having no income.

This was the portion of the original judgment dealing with that application.

  • “I am dealing with an application for costs. It is made by the mother against the father for the costs which she has incurred with the benefit of public funding in this protracted litigation which began life in October 2009. Mr Bergin has stressed that this is not an application made with any pleasure by the mother. It is not therefore a vindictive application. But Mr Bergin properly has to be mindful of the public purse, and the Legal Services Commission in funding the mother’s litigation has been put to enormous expense. So I look at what was behind all of this.

73. The father says he should not have to pay anything. He tells me that notwithstanding the judgment, which has come down heavily against him in terms of being untruthful, he maintains that he has told the truth all the way through and has simply wanted to do right by his children and see his children, and he feels that he had not alternative but to bring the application. I reject the father’s submissions about what prompted the litigation. It is almost unbelievable that in August 2009 this father had an order by consent that guaranteed him regular contact with his children. He says he had to apply in October 2009 because had had lost his job and did not have any money. In my judgment, it was not necessary to launch these proceedings. But beyond that the father has used these proceedings as a vehicle for getting at the mother. At every step of the way he has criticized her and has made allegations about her and he has completely disregarded the interests of the children.

74. I am conscious that the father says he is of limited means. He lives in rented accommodation and he is in receipt of statutory benefits. So it may be that any order for costs could never be enforced. But the question of enforceability is separate. I am satisfied that the case brought by the father had absolutely had no merit. The application followed on a compendious order that gave the father everything he wanted bar calling it a shared residence order. In the three years since his application the father has gone out of his way to make spurious allegations which the court and others have had to investigate and he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable. I am satisfied that, unusual though it is, an order for costs is entirely appropriate and the order will be that the father shall pay the costs of the mother throughout this application from the date of issue. Those costs are to be subject to a detailed assessment and the question of enforcement of costs will be determined separately.”

And this is what the Court of Appeal say about the judicial determination that a costs order was appropriate

  • 15. It is apparent to me, in reading those paragraphs, that the judge had three basic reasons in mind in making the costs order that she did. First of all, towards the end of paragraph 73, she finds that it was “not necessary to launch these proceedings”. Secondly, she finds that the father has “used these proceedings as a vehicle for getting at the mother.” In the same context, later in paragraph 74, she finds that “he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable.” Thirdly, she finds that there was “absolutely no merit” in the case brought by the father. So despite noting, as she does, that he has limited means, lives in rented accommodation, and is in receipt of statutory benefits, and it may be that the order for costs could never be enforced, she nevertheless goes on to make the order that is now the subject of this appeal. Although the judge does not refer to the case-law that I have just made reference to, my reading of her judgment is that it sits plainly within the jurisdiction that Hale LJ described, and which has been endorsed by courts subsequently. This was a finding by the judge that the father had acted unreasonably both in starting the proceedings, but more importantly, in the way he had conducted himself throughout the proceedings. It therefore is plain to me that she, as a matter of law, was justified in considering an order for costs, and I can see no error in her exercise of discretion in deciding to deploy that jurisdiction and make an order in this case.

The issue on which the father appealed was fundamentally the principle of making a costs order against a party with no ability to pay.  Of course, the conclusions that the Judge made at paragraph 74 were that the costs were to be the subject of detailed assessment, and that the issue of enforcement of any costs order was an entirely separate matter to the principle of a costs order being made.  (The fact that the costs order was made did not mean that the Legal Aid Agency would be trying to get the father to make payments out of his benefits, and a consideration of his means would be done at any later stage where the LAA did wish to enforce the order)

The Court of Appeal entirely agreed with the judicial approach

  • 17. Against that background, despite hearing what the father says about the particular incidents, in my view the father cannot succeed in his appeal on the first limb, which is that the judge should not have made an order for costs against him in any event. The second limb in the appeal is that the judge failed to take account of his means and failed to take account of the level of costs that he would be expected to pay. He says, and I readily again accept what he says, that no costs schedule was produced by the lawyers acting for the mother for him to see what it was that he was being asked to pay and for the judge to see what it was he was being asked to pay. He is right to raise that matter with us. He also points out the burden that this costs order would have upon him were it ever to be enforced against him. Given his current means, it would be devastating for him, and he says that he could never get his life back on track if he had to face a bill of this sort. He says that would not only have an impact on him but also, either indirectly or directly, adversely affect his ability to support the children and in other ways that relate to the children’s welfare.

18. Insofar as the absence of a costs schedule is concerned, the judge provided for that circumstance, because her order is plain that there has to be “a detailed assessment of her costs” before the costs order becomes a reality. It therefore is the case that there has to be a process of what in the old days would be called “taxation” of the mother’s costs, adjudicated upon it if necessary, to decide what the reasonable level of costs should be. So the only question is whether we should in some way accept the steer given by Thorpe LJ in granting permission to appeal in requiring the judge’s order to include some phrase such as “not to be enforced without leave”. I am not attracted by that course. The detailed assessment provisions will protect the father from facing a bill which is unreasonable in terms of the elements of the costs schedule itself. The question of enforcement will be for any subsequent court to deal with, on the facts as they then are, as would be the case in any ordinary civil litigation. I therefore do not agree with the view that Thorpe LJ had apparently formed at the permission stage that the judge was in error in not putting in a phrase about enforcement.

19. For the reasons that I have therefore variously given, I consider that the father’s appeal should be dismissed.

So, be warned, egregiously bad litigation conduct which results in hearings and legal costs for the other side can still result in a costs order being made, even where the party is a ‘man of straw’ with no means.  Having no means does not enable the party to engage in bad litigation conduct with impunity.

Whether the order will ever be enforced is another matter, but of course, if the father’s financial circumstances change so that he has means with which to pay the order  (a job, an inheritance, a lottery win or such) the costs order could be legitimately enforced.

So whether you are in the process of advising a person who is carrying on this way that there are risks associated with it, or advising a person on the receiving end of it about the possibility of obtaining a costs order, the case is an important one to be aware of.

Follow

Get every new post delivered to your Inbox.

Join 2,026 other followers