RSS Feed

Tag Archives: Court of Appeal

Genuinely shocking

 

The Court of Appeal in Re A-S (children) 2015 had to deal with an appeal, the facts of which were genuinely shocking to me. And that is as a lawyer who has been dealing with Children Act 1989 cases for over twenty years now.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/748.html

 

Within care proceedings, a range of findings were made against the mother, the most serious of which was that she had deliberately drowned her baby (who survived and is fine now). The mother’s case, including her case on appeal, was that she had been negligent in leaving her child unattended in the bath, where he became submerged, but that it was an accident.

 

You may be thinking that it must be very difficult to establish to the requisite standard of proof whether the incident of drowning was deliberate or accidental. The shocking thing about this case is not merely the incident itself, but that the whole thing was recorded by way of a 999 call.

 

The call lasted for around 15 minutes.  The mother telephoned 999 to say that there had been an accident, that her baby had been left unattended in a bath and had slipped under the water.  However, that 999 call is recorded, and the medical experts (and indeed the Judges) who listened to it had three major concerns :-

 

1. That up until around the nine minute mark, the baby can be heard making normal baby noises that would not be consistent with a child who had nearly drowned.

2. That at around the nine minute mark, the mother stops speaking although the paramedics can be heard trying to talk to her and engage with her. And the sound of running water is heard.

3. That after that period, a scream is heard from the mother, and thereafter, the noises made by the baby are consistent with a child having been immersed under water –  the baby is heard again grunting and coughing then in further respiratory distress and suddenly stops breathing at 10 minutes 48 seconds  – and he was in this position until the paramedic arrived and resuscitated him at around the 15 minute mark.

 

There was also evidence from several medical professionals that it was just not possible that a child would have nearly drowned, showed no ill effects for nine minutes, then stopped breathing and required resuscitation by a paramedic. The sequence of events is just wrong.

“Diana Howlett … is a consultant paediatrician of 20 years. She and two of her colleagues of similar experience, Dr Goldsworthy and Dr Linton, who had been asked to listen to the recording of the call. Her report is at G87. Putting its contents very simply all the three doctors say there is a disparity in their view between the history given by the mother (the child had been found drowned a few minutes prior to the phone call) and the “auditory history” of the child on the call, ie the crying and other sounds L was making in the first 10 minutes of the call and his presentation when medical help arrived at the house. They concluded that they can hear the sound of running water after 10 minutes and the explanation is that it is at this point the child is being drowned. In their written submissions Mr Ekaney QC and Miss Evans ask me to treat this evidence very carefully. The doctor said in cross-examination “we were asked to give an opinion but none of us would consider ourselves experts in this area. It raises more questions really”. I do not intend to put any significant weight on this evidence. They heard what they heard, the baby appeared to be crying while mother was shouting things like “don’t die”, “stand up”, and in particular “wake up, wake up” when from the noise he was making he appeared to be awake. I have to say I heard that too.”

 

  1. I turn to the report of Dr D S James of the Wales Institute of Forensic Medicine at Cardiff University. It was accurately and sufficiently summarised by Judge Marston in his judgment as follows:

    “He says if you ignore the content of the 999 call M’s description of immersion, apparent respiratory arrest, gradual recovery after rescue breaths and presentation to paramedics after 10-15 minutes wet, cold and in respiratory distress but responding well to oxygen with an eventual good recovery is in keeping with the pathology of near drowning. If the child was not in respiratory distress and apparently vocalising normally for an infant of his age ie “well”, the description of a very unwell infant, cold, quiet and collapsed raises the question why there has been a significant and sudden deterioration in his condition. In his report the doctor puts two possibilities, either it is a complication of the immersion or “there has been a further episode of immersion causing L to collapse”. In his conclusions he says the baby would not usually be normal for 10 minutes prior to a sudden deterioration but the consequences of near drowning are complex and variable and there are pathophysiological mechanisms which merit consideration by paediatric clinicians.”

  2. Finally, I go to the report of Dr Stephen Playfor, Consultant Paediatric Intensivist in the Paediatric Intensive Care Unit at the Royal Manchester Children’s Hospital. Dr Playfor’s report contains a very careful and detailed analysis of what can be heard on the recording of the 999 call. He constructed what he called “a robust timeline of events”. His opinion, on the balance of probability, was that L was drowned during the interval of 49 seconds between 21.43:28 and 21.44:17. (Since the recording started at 21.34:48, this corresponds with the interval between 8 minutes 40 seconds and 9 minutes 29 seconds.) He opined that the likelihood of the respiratory distress which can be heard subsequently on the recording occurring as a physiological response to an episode of drowning before the making of the 999 call is “very small (<5% chance).” He said:

    “A single episode of drowning occurring before the recorded 999 call … is not compatible with the sounds contained within that recording.”

    He added:

    “L can be heard to vocalise and cry normally during the first 8 minutes and 40 seconds of the recorded 999 call without any sign of respiratory distress. During this period I am confident that he was conscious, ‘near normal’ and not in any need of resuscitation.”

 

 

The conclusion that the Judge was inexorably drawn to was that the mother had made a 999 call when there was nothing wrong with the child, but during the course of the call had done deliberately to the child what she was claiming had happened accidentally.

 

About the only argument that mother could deploy is that this seems unbelievably improbable, and so she deployed it.

“I now turn to consider the final part of [the] jigsaw, M’s evidence. She deploys a number of powerful points before she even gets into the witness box. First there is the inherently unlikely nature of the allegation that a mother would drown her own child. Her father, for example, thought such a possibility here as absurd. That does not of course change the standard of proof but it is something I must have strongly in mind when considering the case. Next there is something called the wider canvass. Here I am dealing with the loving, kind mother who it is said was without external stressors and who gave a consistent account throughout.”

 

 

It was, of course, a very significant finding for the Judge to make, particularly in a case where there’s nothing in the background features of the case that would cast any light on why the mother would do something as peculiar and harmful as this.

The judge’s conclusion is in a passage which I must set out in full:

“The medical evidence all points in the same direction. The baby was normal until about 8/9 minutes into the 999 call. There is no reason related to an earlier drowning incident that would cause the post 10 minutes in collapse. The Mother’s evidence of what happened is not substantiated by any external matters eg a pan of burned food or a full baby bath, there is some evidence of what might be brown flecks of faeces in the bath but no other bit of the Mother’s story is supported The Mother’s evidence is shot through with so many lies and so much vagueness that I am forced to conclude she is trying to hide something. The only thing that she can possibly be attempting to hide is that there was no incident of drowning in the bath and that she is responsible for attempting to drown the child after 8 minutes and 40 seconds of the phone call for about 47 seconds. Most likely this was under the tap in the conservatory. I cannot speculate on why she made the call in the first place or why she did what she did. It seems to me that at the point where she seeks reassurance from Mr Mahony that the baby will be alright and he says the child is seriously ill she becomes hysterical because she realises what she has done. It may be that she did not intend to kill the baby. Until the mother tells the truth we are left with speculation.

I find [the] allegation proved on the balance of probabilities.”

The Judge added a clarification about the mother’s motivation for making the 999 call

“With regard to the 999 call I have to conclude that the 999 call was instigated for a reason I can only speculate about, and I do not think it is appropriate for me to speculate. My finding is that at the start of that call the child had not been subject to an incident of drowning. I made that finding specifically on all of the evidence that I heard; the medical evidence; the evidence from all of the parties who gave evidence; and the witnesses that were called. I do not know why the mother was distressed during the first part of the call. She was certainly at the time of the arrival of the paramedic in a calm condition, and became distressed – in fact hysterical according to the paramedic – after she was told, as I pointed out in my judgment, the condition of her baby was very serious. I rely on the totality of the evidence about the 999 call. I gave only marginal weight to the three paediatricians who were not jointly instructed experts and who, one of whom in Mr Kenny’s cross-examination, conceded that they were only again marginally connected with the case. I obviously give a great deal more weight to the jointly instructed experts, and I have listened to the call myself and read the transcript.”

This is one of the sad truths about Court hearings – sometimes even after every scrap of paper is obtained and every witness is scoured in cross-examination, the Court doesn’t get to the Truth, the Whole Truth and Nothing But the Truth.  We will never know what made the mother do what she did here, and speculation was quite rightly put out of the picture by the Judge.

The appeal was on the basis largely that the Judge had gone too far in making a finding that the mother had deliberately injured the baby by drowing it, after making a 999 call.

The problem that mother’s team had to overcome was that the 999 recording was not only compelling evidence for the medical experts, but that it was striking and easy to follow for anyone listening to it, including the Court of Appeal Judges.

  1. This appeal comes before us in forensically unusual circumstances. As I have already remarked, at the heart of the appeal is the question of what it is that can be heard on the recording of the 999 call; crucially, what exactly it is that can be heard of L. Each of us has listened to the recording. I have listened to the recording more than once. We are therefore in almost as good a position as the judge to come to a conclusion.
  2. The experts described what they had heard on the tape during the first nine minutes or so of the recording. It is apparent from his judgment and his subsequent clarification that their descriptions accorded with what Judge Marston heard. It accords with what I heard when I listened to the recording.
  3. Two points emerge:

    i) First, during the first nine minutes or so of the recording one hears what Dr Howlett and her colleagues described in their report as “Normal baby vocalisations”including “polysyllabic babble and normal multi-tonal crying.” Equally important is what one does not hear: coughing, grunting, wheezing or other sounds of respiratory distress.ii) Secondly, the layman’s impression is confirmed by expert opinion: what can be heard is not compatible – the words used both by Dr Howlett and her colleagues and by Dr Playfor – with a previous drowning.

    Put very simply, a baby who presented as L did to Mr Mahoney when he arrived, would not have been vocalising, indeed would not have been capable of vocalising, as L was during the first nine minutes or so of the recording, if he had drowned before the 999 call was made.

  4. It was this which drove Judge Marston to his conclusion as to the timing of L’s drowning. That was plainly a conclusion properly open to him. Indeed, I would without hesitation have reached the same conclusion. L was not drowned before the 999 was made; he was drowned some nine minutes or so after the recording began.
  5. That being so, the only remaining question is whether this drowning was itself accidental or, as the judge found, deliberate. Judge Marston inferred that it was deliberate. In my judgment hewas entitled to come to that conclusion. Mr Ekaney submits that the judge was here in the realm of mere speculation. I do not, with respect, agree. Two factors point compellingly in this direction. First, it follows from the ascertainment of the true timing of the drowning, that the mother’s 999 call was false. L had not at that time “fallen in the water”. There had been no negligence on the mother’s part. What an astonishing coincidence that, some ten minutes later, L should actually have suffered an accidental drowning, that precisely what the mother had fabricated should so soon become reality. Secondly, if this drowning was in truth accidental, then why on earth did the mother not say so? Why should she persist in her lies? It would of course expose her to the charge that she had made a false 999 call, and wasted the time of the emergency services, but surely better that than being found to havedeliberately drowned her own baby.
  6. Where Judge Marston did, correctly, say that he would be entering into the realm of speculation was in relation to two matters: first, the mother’s reasons for making the false 999 call and then deliberately drowning L; and, secondly, as to the mechanism she adopted. The fact that, in relation to these crucial matters, he could only speculate no doubt gave Judge Marston pause for thought, just as they have me.
  7. Given his, and my, inability to provide anything except the most speculative answers, could he be confident, can I be confident, in relation to the timing of the drowning? That, at the end of the day, as it seems to me, is what this appeal really comes down to.

 

The appeal was dismissed, but the Court of Appeal went further than saying that His Honour Judge Marston was not shown to be wrong.

 

  1. So far as concerns Judge Marston, I have no doubt that the appeal must be dismissed, essentially for the reasons so succinctly articulated by McFarlane LJ. Despite all Mr Ekaney’s very considerable and very skilful endeavours, Judge Marston’s ultimate conclusion is, in my judgment, unassailable. In the light of all the evidence, and in particular in the light of what he heard when listening to the recording, he was entitled to conclude as he did and for the reasons he gave.
  2. That suffices to dispose of the appeal, but in these very unusual circumstances I can, and should, go further. As I have said, having listened to the recording, I am convinced that the judge was right. What I was listening to during the first nine minutes or so was a baby who had not then been drowned. From this it follows inexorably, given all the other evidence, that the mother’s 999 call was false and that the drowning which took place at some point thereafter but before Mr Mahoney arrived was indeed deliberate. I have anxiously asked myself whether I can truly be that confident, given that I am left speculating, as was Judge Marston, on important matters to which such a finding necessarily invites attention. I can only say that, despite my inability to provide more than speculative answers to those questions, I am convinced by what I heard. The recording is, to anyone who has heard it, extraordinarily compelling. It drives one inexorably to the conclusion at which Judge Marston arrived.

 

This must have been a very terrible case to deal with. I’m sure that in order to deal with it properly, those involved had to listen to that harrowing tape many many times. Having had to listen to that sort of tape myself , I know that it stays with you very vividly for many years, and never completely leaves you.

 

Cases like this are of course, very very rare.  When children are injured, it is more usually a momentary lapse, a loss of self-control or careless handling without thought to the strength that an adult can bring to bear.  Sometimes, as in this case   Cumbria CC v Q 2015http://www.bailii.org/ew/cases/EWFC/HCJ/2015/59.html , something that looks like horrific abuse can actually have an innocent explanation.  That case took 18 medical witnesses to arrive at the juidicial finding that the baby had rickets and thus had a propensity to fracture more easily than an average child.  Up until that point, there had been features  that would have led anyone to be deeply suspicious (both parents had convictions for violent offences, the parents had given inconsistent evidence and lied about things, the injuries were multiple, serious and ‘classic’ nai type injuries)

 

It really is very rare, that as here, something happens that leads a parent to deliberately set out to harm their child.

 

From what is reported here, there was nothing that could have led anyone to predict that this might happen, and so we are fortunate that mother made the 999 call and that a paramedic arrived. This does not appear to have been something that could have been predicted or prevented before it happened.  If someone had ever alleged that such a risk was likely, or even theoretically possible, before it happened, they would have looked a fool.  Hopefully nothing like this will ever happen again.

 

 

 

 

 

The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case http://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  http://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Someone had blunder’d

 

In these times where every week seems to give family practitioners another raft of guidance to follow, another lecture on how awful we all are for not doing this that and the other and another bout of finger wagging, this case might make some of us happy.

 

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1627.html

 

In which there was a terrible cock-up, and it wasted a lot of time and money, and was unfair and an apology had to be made. But for once, it was the Court having to say that they got it wrong, rather than wagging fingers at everyone else. Even more sweet because the apology was delivered by the President himself.  (Fair play to him, he came out and did it straight)

 

This was a case where mother was told by Pauffley J to return her child to America forthwith. Mother made an application to appeal.  That application came before King LJ as a paperwork request. The mother and her solicitors were told that the application for permission to appeal was refused. A stay had been made to prevent Pauffley J’s order taking effect for 3 weeks, to allow the application for permission to appeal to come before the Court of Appeal for an oral application.

 

When that 3 week period expired, father applied to the High Court for enforcement of the order (as he was entitled to), because the child had not been returned to America. The case came before the President on 29th May 2015 and the President made a series of orders, including an order to seize mother’s passport.

 

What the President did not know, and what none of thelawyers  knew, was that King LJ had extended the stay to 12th June (at a hearing where mother appeared in person and permission to appeal was refused). Everyone knew that permission to appeal had been refused, but nobody (save the mother and King LJ knew about the stay being extended)

 

So, at the time that the President was making really serious orders (the tipstaff going out and forcibly taking mother’s passport away from her) on the basis of mother being in breach of Pauffley J’s order, the Court had already granted a stay of that order. The mother was  not in breach of the Court order.

 

Rather embarrassingly, it was the mother who had to notify the Court when she was served with the President’s order, drawn on the basis that she was in breach of Pauffley J’s order that she (and apparently she alone) was in possession of knowledge that King LJ had extended the stay until 12th June and thus she wasn’t in breach.

 

 

  • So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.
  • The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:

 

“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”

They added:

“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”

Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.

 

  • The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:

 

“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”

The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.

 

  • I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:

 

“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”

Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.

 

  • Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.
  • I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.
  • There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.
  • The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.

 

 

I note that in looking at the reasons why a Court did not know that extremely relevant Court orders on the case had been made which would have transformed the Court’s thinking, it is a shame that the President did not refer to the seminal case of Right Hand versus Left Hand  (ex parte Escher) 1854  in which it was held that the Left Hand had no knowledge of what the Right Hand was doing and vice versa.

 

Perhaps we need a brand new Monopoly card

Court error in your favour. Collect  ten red faces!

Court error in your favour. Collect ten red faces!

 

It is mean of me to gloat. Everyone can make mistakes, even very significant ones like this. We are all human beings, and working under pressure and tight deadlines. The Court, like all of us, is only human.

 

As Alexander Pope said, “To err is human, to forgive, divine”

 

So on behalf of those of us who have been getting nothing but lectures and grief from judgments, speeches, Practice Directions and Views about how every tiny thing we do we are doing wrong and the solution is to become more cumbersome, time-consuming and intricate over the last two years, Mr President, we forgive you.

 

Experts and fairness

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

 

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.

 

As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

 

Some very quick practice points:-

 

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

 

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

 

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

 

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

  1. A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

  2. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

 

AND

  1. The written reasons for the decision given by the magistrates are as follows:

    “We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

  2. That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

 

NEW

5. Protection for litigants in person

 

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

 

 

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

 

  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

 

Who has the burden of proof?

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

http://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “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.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

Follow

Get every new post delivered to your Inbox.

Join 3,574 other followers