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“I need not descend into detail”

 

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

 

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

 

The Court of Appeal took the opposite view.

 

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

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

 

 

step-parent adoptions and nothing else will do

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

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

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

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

 

 

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

 

Ruling on ‘the rule’

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

Care proceedings by the back door

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

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

 

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

 

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

That wasn’t the thrust of this appeal though.

 

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

 

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

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

 

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

 

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

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

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

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

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

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

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

 

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

 

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

 

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

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

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

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

 

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

 

The Recorder dismissed the application. She explained why:
 

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

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

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

The Recorder then said this:
 

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

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

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

She then said this:
 

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

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

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

 

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

 

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

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

 

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

 

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

 

 

Written Agreements

 

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

 

These would be my golden rules for parents about written agreements

 

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

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

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

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

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

 

 

And for social workers

 

1. Be clear

2. Be fair

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

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

 

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

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

 

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

 

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

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

 

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

 

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

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

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

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

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

 

There are two issues here :-

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

We are all unquantified risks

 

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

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

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

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

Why did nobody have the court papers?

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

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

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

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

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

 

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

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

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

 

 

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

 

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

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

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

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

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

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

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

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

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

There are two different perspectives here

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

OR, conversely

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

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

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

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

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

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

Children giving evidence

 

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

Re B (Child Evidence) 2014

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

 

John Bolch does an excellent summary here

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

 

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

 

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

 

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

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

 

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

 

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

 

 

 

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

 

 

 

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

 

 

 

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

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

 

Quite so.

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