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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?

 

Costs argument between Official Solicitor and Mail on Sunday

 

The Court of Appeal dealt with an appeal arising from a costs order made by the President in the Re G case.

The Re G case is an incredibly controversial one, which has now been before three High Court Judges and the Court of Appeal, and involves a Court of Protection application to protect the finances of a woman aged ninety four from carers who were urging her to change her will in their favour  OR a Local Authority dragging a ninety four year old into Court and trying to control her life and gag and silence her  (depending on which side of the controversy you stand).

 

I summarised all the controversial litigation in this post here http://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

In the very last batch of the litigation, the Mail on Sunday tried to become a party to the Court of Protection proceedings, wanting an input into the letter of instruction to the expert who would be considering whether G had capacity to make her own decision about talking to the Press or whether she did not; and also running the argument that the journalist had an article 8 right to private and family life with G  (you might think that was a curious argument, but the President didn’t actually reject it)

At the end, the Mail on Sunday having lost in all of its applications, the Court ordered that the Mail on Sunday pay 30% of the costs of the Official Solicitor  (let’s quickly remember that all of the Official Solicitors costs are met out of G’s estate, so this was a hearing that cost G money) and 30% of the costs of the Local Authority.

 

The Official Solicitor appealed that order, seeking 100% of its costs. The Local Authority did not appeal the order.

Re G (an Adult) by her litigation friend the Official Solicitor (costs) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/446.html

 

The Court of Appeal considered that the President had struck the right balance [Or certainly that it could not be said that he had been wrong]. Yes, the Mail on Sunday had lost all of their applications, and G’s estate had incurred costs as a result. But also, important (and previously unlitigated) issues of principle had been raised and now resolved to the benefit of public policy. Therefore, it was right that the Mail on Sunday pay some, but not all of G’s costs.

  1. Given the terms of the rule, the challenge to the President’s exercise of discretion is a bold submission. The President set out his reasons. He applied the framework set out in the rules. He identified those matters to which he gave weight. Given that he had concluded that the Official Solicitor had triggered ANL’s application and that he had not understood the public importance of the media’s general role, a proportionate order was an unsurprising outcome. An appeal against the exercise by a judge of his discretion faces a high hurdle. I shall give just one well known example of that hurdle as described by this court in respect of proceedings in this jurisdiction: Burchell and Ballard [2005] EWCA Civ 358, [2005] CP Rep 36 at [25] per Ward LJ:

    “Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle.”

  2. One only has to consider the exercise of discretion in this case from a perspective other than the Official Solicitor’s to understand the point. It was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings. In this appeal Mr Patel seeks to explain the Official Solicitor’s stance by postulating that any journalist who intruded into G’s private affairs would have been unjustified given Cobb J’s interim declarations and the Press Complaints Commission Editor’s Code of Conduct, but that involves issues of fact which were not established. ANL’s response was wholly misconceived and that was conduct within the proceedings. ANL achieved one of the ends they pursued which was the issue of public importance relating to the role of the media that was triggered in the manner described.
  3. In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle. None of this should be taken to be an encouragement to the media to use misconceived applications of this kind but it seems to me to be impossible for the Official Solicitor to succeed in arguing that the President exceeded the broad ambit of his discretion by placing too much emphasis on one factor or too little emphasis on another such that he was wrong.
  4. There is one further argument that tells against the second ground of the appeal and that is whether and to what extent ANL should pay two sets of costs. It is submitted by Mr Patel that this was irrelevant. I disagree. The President cannot be said to have been wrong in principle to raise a question that is within the framework of the rules and the terms of rule 159 CoPR. In doing so he apprehended a general principle applied from the administrative law context. There is ample authority for the proposition that multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. See, for example, the proposition cited with approval by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment and Ors [1995] 1 WLR 1177 at 1178:

    “In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs”

  5. The President would have had that principle well in mind given his decision in R (Smeaton) v Secretary of State for Health [2002] 2 FLR 146 at 245 where he overtly applied the principle.
  6. For these reasons I concurred in the dismissal of the appeal. At the conclusion of the proceedings the court expressed its strong view that this appeal should not have any adverse financial effect upon the assets of G. The Official Solicitor has considered that view and I am grateful to him for his confirmation that G will not bear the costs of this appeal.

I was wondering the other day what had finally happened with this case. I still don’t know, but there must have either been a hearing, or be one coming up soon.

Court of Appeal – split hearings aren’t to be used for ‘whodunnits’

Not their exact words, you understand.

These are their exact words:-

 

  1. The hearing at the end of which the findings were made was what is known as a ‘split hearing’ i.e. a hearing limited to a discrete issue of fact without a full analysis of the welfare context. Counsel for the parties before this court acknowledged that the decision to have a split hearing which was taken by a different judge when different advocates were involved cannot have been right given that the issue to be decided was perpetration in the context of an incident of harm, rather than whether the harm occurred.
  2. It is unnecessary for this court to do other than refer to the clear guidance on the point that has been firmly and repeatedly given by this court but just as repeatedly ignored, see for example In the matter of S (A Child) [2014] EWCA Civ 25 at [27] to [31]. There is no discrete issue that would determine the proceedings in a case like this where harm has been suffered and the perpetrator of that harm is unknown. The social work assessments of those in the pool of potential perpetrators may cast important light on the allegations that are to be determined and upon the reliability of those in the pool and the other witnesses and materials that are available

 

Re BK-S (children) (Expert evidence and probability) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/442.html

If you were wondering which appeal judge was standing up for Lord Justice Ryder’s lead decision in the little-loved Re S (a child) 2014 which effectively banished split hearings for anything other than the most serious case (even though split hearings were invented by the Children Act advisory committee and endorsed by the House of Lords)… well, you aren’t really wondering that, are you?

 

[If you are, then I would like to talk to you about my new business opportunity, where investors get to buy tonnes of gold for the price of grammes of gold. This gold will be all yours when the Sun enters its supernova phase.  The price of gold will likely to increase all the time that your investment is maturing, making this an even more profitable venture. It really is a once in a lifetime investment opportunity]

It is an interesting case in itself, a 6 month child who had been administered (by an adult) doses of an anti-psychotic medication over a period of time. It was established by toxicology reports and medical evidence that the child had been given this drug, Olanzepine, and that it had caused him significant harm. The only real issue was whether it had been given by father, mother or paternal grandfather.

 

The parents were separated, and thus there was quite a clear log of who had been caring for the child on particular days. And the expert called (and then re-called) was able to give quite detailed accounts about how the test results showed the level of Olanzepine, and how Olanzepine has a half-life  (i.e if someone takes 100 milligrams of  X time, there would be say 50 milligrams, and after 2X time, 25 milligrams, and so on), such that calculations can be done to work back from the level to calculate when the drug was taken. Or in this case administered.

The difficulty was that all of that information on half-life is based on adults. For a child of six months, the half-life might be different. It might react more quickly, or more slowly, or have greater symptoms.  The reference to Tanoshima here is the name of a study – both are on single children, because obviously there are ethical medical issues on giving anti-psychotics to 100 infants to see how quickly it comes out of their system.

 

  1. When Professor Johnston was recalled on 28 May 2014, the following oral evidence was adduced:

    “Q. [..] There are two reported studies. One that says a half life is 11.6 hours in a 28 month old child. The other one is 13.72 hours for a child of 17 months.

    A. Yes.

    […]

    Q. Can we safely assume – and I mean with almost certainty – that the half life of [Z] would have been less than 21 hours?

    A. I think that would be a reasonable assumption.

    Q. Yes. I think you also said in your previous evidence that it would be a reasonable assumption to take the 13.7 in the Tanoshima case as well?

    A. Yes.

    Q. Would that be right? So if I were for instance to take 18 hours, that would be safe as well?

    A. Yes.”

  2. The judge accepted the evidence that was adduced in the following passage in his judgment:

    “Professor Johnston agreed that to assume a half life between 21 and 13.7 hours would be likely, but that working on a half life of 18 hours in those circumstances would be safe.”

 

On reading that, I can instantly see the appeal point. If the half-life was taken by the Judge as being probably 18 hours, but between 13.7 hours and 21 hours, and that took one person OUT of the pool of perpetrators and made it more likely than not that the other person administered the drug, then an alternative reading of the evidence given might be

“So it is very difficult to be sure of the half-life of Olanzepine in a child of this age, because the research deals with only two children, and both are much much older. It would be unwise to place reliance on hard and fast numbers to resolve this problem”   (my words, but I guess that’s what counsel had been driving at with those questions)

The Court of Appeal considered that the Judge had not been wrong to follow the expert evidence and to make the finding that Olanzepine had been administered to the child on a date when mother had been in hospital with the child and father had not been present – thus that the mother had been the person who administered the drug to him.

MN (adult) 2015 – Court of Appeal pronouncements

Re MN (an adult) 2015 is a Court of Protection case, heard in the Court of Appeal, which spends nearly half of its length talking about care proceedings, housing and practice directions.

It is very very dense, and in all conscience, I couldn’t ask you to read this unless you are a lawyer or are particularly fascinated by Court of Protection work.  (There’s a brief bit in there of relevance to family lawyers – about whether Courts have the final say on care plans. If you’re pushed for time – despite Neath Port Talbot, they don’t)

Lots of big stuff in there though, including important bit for children cases.  There’s care plans, court power to make Local Authority change their plans, whether declarations are valid, costs and timescales in Court of Protection cases and our old friend bundle sizes.

If you are a lawyer working in the Court of Protection, brace yourself for a huge pile of standardised orders, case summaries, and practice directions, all of which will be carefully and thoughtfully designed to make every aspect of your working life more awkward and time consuming than it was before.  Flaubert once said that writing his novels was like having ones flesh torn off with red hot pincers, but he never had to complete a standardised Case Management Order. He would have considerably softened his view of how hard it was to write his novels, if he had this broader experience of life’s miseries.

If you see an announcement of the Court of Protection Outline being launched, quit your job, and take up gainful employment as someone who tests the sharpness of porcupine quills by bungee jumping onto them face first – you will be much happier in the long run.

[Editor note – somewhat over-selling that, Suesspicious Minds? Perhaps a smidge. ]

The actual point of the appeal is an important one,  and in deciding it, the Court of Appeal say some useful things about care cases and specifically care plans.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html

Let’s deal with the care plan bit first (sorry Court of Protection folks, but actually explaining this will help explain what’s going on later on in the judgment)

 

Historically this has been the deal – the LA submit their care plan (what will they do if the Court grant their order?) and the Court decide whether to grant the order. We then got into something of a tangle in cases where the Court wanted to grant the order, but not on the plan put before them. There have been various stages of that arm-wrestling, but where we got up to recently was Re W (or the Neath Port Talbot case) in which the Court of Appeal (principally Ryder LJ) tried to put the power in the hands of the Court.  [I personally think that flies in the face of Supreme Court authority, but ho-hum]

The President here clarifies the law, and takes a step backwards from the more bullish aspects of the Neath Port Talbot judgment. Underlining mine for emphasis.

  1. Finally, I need to consider the position where the court – that is, in relation to a child the subject of care proceedings, the family court, or, in relation to an adult the subject of personal welfare proceedings, the Court of Protection – is being asked to approve the care plan put forward by the local or other public authority which has brought the proceedings. I start with care proceedings under Part IV of the 1989 Act.
  2. 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.
  3. 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.
  4. 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.

  5. I should add that the court has the power to direct the local authority to file evidence or to prepare and file a further plan, including, if the court directs, a description of the services that are available and practicable for each placement option being considered by the court. The local authority is obliged to do so even though the plan’s contents may not or do not reflect its formal position, for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431. As Ryder LJ said (para 79):

    “It is part of the case management process that a judge may require a local authority to give evidence about what services would be provided to support the strategy set out in its care plan … That may include evidence about more than one different possible resolution so the court might know the benefits and detriments of each option and what the local authority would or would not do. That may also include requiring the local authority to set out a care plan to meet a particular formulation or assessment of risk, even if the local authority does not agree with that risk.”

Where Ryder LJ was suggesting that at this point, the Court can mutter darkly about judicial review and invite a party to make such an application  (in effect compelling the Local Authority to either give in or incur horrendous costs in judicial review proceedings with no prospect of recovering those costs from the other side, who will be ‘men of straw’), the President considers that after those attempts at persuasion have failed, the Court has to choose the lesser of two evils.

  1. Despite its best efforts, the court may, nonetheless, find itself faced with a situation where it has to choose the lesser of two evils. As Balcombe LJ said in Re S and D (Children: Powers of Court) [1995] 2 FLR 456, 464, the judge may, despite all his endeavours, be faced with a dilemma:

    “if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children’s best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.”

    Balcombe LJ continued:

    “It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him … then that is the unfortunate position he has to face.”

  2. In practice courts are not very often faced with this dilemma. Wilson J, as he then was, recognised in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119, para 51, that “a damaging impasse can develop between a court which declines to approve their care plan and the authority which decline to amend it.” But, as he went on to observe:

    “The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court) [1995] 2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court’s determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it … In the normal case let there be – in the natural forum of the family court – argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child.”

 

It would remain an unwise Local Authority who continued to disagree with judicial persuasion at that point, but if they do, the Court simply has to choose.  [It is worth noting that the issue that Ryder LJ went to war on – the ability to force a Local Authority to have a care order with a plan of the child being at home, is exactly the situation which is wreaking havoc in Re D – since if it all goes wrong, the parents get no legal aid to argue the case and there’s no easy application to be made to fix things]

 

Moving on, (come back Court of Protection people) , the Court of Protection say that the same provisions apply. The Court can try to persuade a Local Authority to alter their plan, but they can’t compel them to.

In my judgment exactly the same principles as apply to care cases involving children apply also to personal welfare cases involving incapacitated adults, whether the case is proceeding in the Family Division under the inherent jurisdiction or, as here, in the Court of Protection under the Mental Capacity Act 2005. The fact that a care plan is now part of the statutory process in relation to care cases involving children, whereas there is no corresponding statutory requirement for a care plan in an adult personal welfare case is neither here nor there. Care plans are a routine part of the process in adult cases.

 

That’s important, because the fundamental issue in MN was that MN’s family disagreed with the plan that the Local Authority had for him, and wanted the Court to decide that this plan was not in his best interests.

  1. MN, born in 1993, is a young man who suffers from profound disabilities and lacks capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18th birthday the court approved MN’s move from his residential children’s placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN’s placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN’s parents, Mr N and Mrs N, accept, reluctantly, that MN should live at RCH, where they have regular contact with him, but their aspiration remains that he should return to live with them at home.
  2. By the time the matter came on for hearing before Eleanor King J, the issues had narrowed to disputes (i) as to whether Mrs N should be permitted to assist in MN’s intimate care when visiting him at RCH and (ii) as to whether contact should also take place at Mr and Mrs N’s home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.

You can see from the lead-in that the Court of Appeal weren’t terribly taken with the idea that by deciding that X plan wasn’t in MN’s best interests, the Local Authority could be compelled to redesign the plan for MN.  The Court has to choose from the options which are realistically before it – they have to choose from what’s on the menu, rather than demanding that the chef cook something more to their liking.

 

If the family really think that the LA are unreasonable, then the remedy is judicial review, not getting the Court of Protection to twist the Local Authority’s arm (or make declarations whose value is merely to lay the foundations for a good judicial review case)

 

  1. In my judgment the judge was right in all respects and essentially for the reasons she gave.
  2. The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.
  3. The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

    “In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.”

  4. Back of the specific authorities to which I have referred there are, in my judgment, four reasons why the Court of Protection should not embark upon the kind of process for which Ms Bretherton and Ms Weereratne contend. First, it is not a proper function of the Court of Protection (nor, indeed, of the family court or the Family Division in analogous situations), to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it. Secondly, it is not a proper function of the Court of Protection (nor of the family court or the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court. Thirdly, such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court. Fourthly, such an exercise runs the risk of exposing the public authority to impermissible pressure. Eleanor King J rightly identified (para 59) the need to:

    avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

    Precisely so.

  5. The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?

 

That last point segueways into all of the Practice pronouncements.

Let’s start with bundles.

  1. We were told that the trial bundle in the present case ran to five lever arch files and also, which did not surprise me, that this was not atypical in this kind of case. I confess, however, to being surprised – and that is a pretty anaemic word – when told that the bundle contained no fewer than 2,029 pages of evidence. That, I have to say, is an indictment of the culture which has been allowed to develop in the Court of Protection. It must stop. In the family court, the relevant Practice Direction in relation to bundles provides that the bundle must not exceed one lever arch containing no more than 350 pages unless a larger bundle has been specifically authorised by a judge: FPR 2010 PD27A, para 5.1. It might be thought that the corresponding Practice Direction in the Court of Protection, PD13B, should be brought into line. In the meantime, proper compliance with PD13B is essential and should be rigorously enforced by Court of Protection judges. In particular, proper compliance with PD13B, paras 4.2, 4.3, 4.6 and 4.7, which judges must insist upon, will go a very long way to meeting the concerns identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
  2. In the Court of Protection, the use of expert evidence is restricted by Rule 121 to “that which is reasonably required to resolve the proceedings.” One of the most salutary and effective of the recent reforms to family justice has been the imposition of a significantly more demanding test by section 13(6) of the Children and Families Act 2014 – “necessary to assist the court to resolve the proceedings justly.” Here, as I have already noted, the bundle contained an astonishing 1,289 pages of expert evidence. The profligate expenditure of public resources on litigation conducted in such an unrestrainedly luxurious manner is something that can no longer be tolerated. As I recently observed in relation to the family court (Re L (A Child) [2015] EWFC 15, para 38):

    “I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation.”

    Consideration requires to be given to the early amendment of Rule 121 to bring it into line with section 13(6).

 

Get ready for 350 page bundles and rigorous scrutiny over expert evidence. If the experience in family proceedings is anything to go by, expect to be spending 10% of your working day f***ing about with bundles.

What else?

 

Timescales

  1. That takes me on to the other point. The time these proceedings took to reach a final hearing was depressingly long. I am very conscious that one must not push too far the analogy between personal welfare proceedings in the Court of Protection and care proceedings in the family court, but they do share a number of common forensic characteristics. Even allowing for the fact – not that it arose in this particular case – that cases in the Court of Protection may involve disputes about capacity which, in the nature of things, do not feature in care cases, there is a striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the 1989 Act. The present case, it might be thought, is a bad example of what I fear is still an all-too prevalent problem.
  2. We invited counsel to make any comments on this aspect of the matter which they thought might assist. Their historical accounts of the litigation are illuminating and need not be rehearsed but demonstrate that the delays were not caused by any one party nor by any one factor. The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.
  3. In the family court the handling of care cases has been radically improved, and the previously endemic problem of delay has been brought under control, by the procedures set out in the Public Law Outline, contained in the Family Procedure Rules 2010, PD12A. Key elements of the PLO are judicial continuity, robust judicial case management, the early identification of issues by the case management judge, and the fixing at the outset by the case management judge of a timetable, departure from which is not readily permitted. Failure to comply with the timetable set by the judge and failure to comply, meticulously and on time, with court orders is no longer tolerated, as defaulters have discovered to their cost (for the applicability of this to the Court of Protection see Re G (Adult); London Borough of Redbridge v G, C and F [2014] EWCOP 1361, [2014] COPLR 416, para 12). Moreover, the parties are not permitted to agree any adjustment of the timetable or any extensions of time without the prior approval of the court: see Re W (Children) [2014] EWFC 22, paras 17-19. In the family court there has been a cultural revolution, from which the Court of Protection needs to learn.

 

[Of course, the best revolutions to learn from are those that actually worked, but I suppose you can learn from an unholy mess of a cultural revolution too]

What else?

Lack of rigour in defining the argument

  1. The first relates to the need, rightly identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given. The purpose, of course, is to ensure that each party knows the cases being advanced by the others. Charles J went on (paras 34-46) to elaborate how all this might be achieved.
  2. That judgment was handed down on 26 January 2011. It is depressing to have to note how little of what Charles J had said seems to have percolated through to those involved in the present case.
  3. The proceedings began, as I have said, on 25 August 2011. The hearing before Eleanor King J commenced on 18 November 2013, over two years later. The issues with which Eleanor King J and subsequently this court have been concerned had, to use Ms Bretherton’s phrase, been “bubbling under the surface for some time.” The case was listed for three days. As Eleanor King J described it in her judgment (para 46):

    “[Mr and Mrs N] had anticipated until the morning of the trial that, whilst they make a concession in relation to MN’s residence, there would still be consideration by the Court of Protection of the contact issue. Their expectation was that, over 3 days, witnesses would be called and cross-examined and submissions made prior to the court reaching a ‘best interests’ decision as to whether or not MN should have contact at the home of his parents as the first stage of a gradual progression to either living or spending lengthy periods of time with them there. I understand that they may feel that the ground has been cut from under their feet by what Ms Bretherton referred to as the public authorities’ ‘knock out blow’.”

  4. As the judge records in her judgment (para 18), counsel for ACC in a position statement dated 14 August 2013 had flagged up one issue in the case as being the interface between the Court of Protection and the Administrative Court, and had made it clear that her case was that the Court of Protection is limited to choosing between the available options and making decisions that MN is unable to make by virtue of his incapacity. However, directions were given at a hearing on 28 August 2013 for the filing of further evidence and thereafter, we were told, the parties prepared for a three day trial of the contested issues of fact.
  5. ACC’s stance on the jurisdictional issue was clarified in an email (to which copies of various authorities were attached) sent by ACC’s counsel to the other counsel in the case at 23.02 the night before the hearing was due to start. The judge recorded what followed (paras 22-23):

    “[22] … When the court sat it was told, for the first time, that a jurisdictional issue arose as to whether … the court should, or should not, now embark on a contested ‘best interests’ trial in relation to home contact and of personal care of MN by Mrs N.

    [23] No skeleton arguments on the law had been prepared and none of the position statements filed directly addressed, or even identified this legal argument.”

    The judge (para 47) appropriately paid tribute to Ms Bretherton for being both able and willing to deal with the argument then and there.

[Suesspicious Minds note – never mind credit – Ms Bretherton deserves a 21 gun salute and a parade for being able to walk a Court through all of this complexity without a substantial written document]

 

  1. The judge was rightly critical of how this state of affairs had come about and (para 46) “wholeheartedly endorse[d]” the observations Charles J had made in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
  2. Steps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.

 

The quest for perfection

  1. This is not the first time that practice in the Court of Protection has attracted judicial criticism: see the judgments of Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118, paras 126-148, and of Peter Jackson J in A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1. A & B related to two cases. In one case the proceedings in the Court of Protection had lasted for 18 months, in the other for five years. In his judgment, Peter Jackson J described (para 11) how:

    “the consequence of delay has been protracted stress – described by one parent as “the human misery” – for the young men and their families, with years being lost while solutions were sought.”

  2. He rightly drew attention (para 14) to a particular problem:

    “Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in s 1(5) of the Mental Capacity Act 2005 that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’ calls for a sensible decision, not the pursuit of perfection.”

    I agree, and wish to emphasise the point. He went on (para 15) to deprecate, as Parker J had done, “a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved.” Again, I wholeheartedly agree.

 

Declarations

Unless the declaratory order sought comes squarely within the statute, it ought not to be used, says the Court of Appeal. It is a hangover from the inherent jurisdiction days, but the Court of Protection is not in that ‘theoretically limitless powers’ kingdom any longer-  it has the powers that Statute provides it, and no other.

 

  1. There was a certain amount of debate before us as to the use of declaratory orders in the Court of Protection. This is not the occasion for any definitive pronouncement but three observations are, I think, in order.
  2. First, the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate. It originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful. Even before the Mental Capacity Act 2005 was brought into force, that view of the inherent jurisdiction had been shown to be unduly narrow: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115. Moreover, the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.
  3. Secondly, the Court of Protection is a creature of statute, having the powers conferred on it by the 2005 Act. Section 15 is very precise as to the power of the Court of Protection to grant declarations. Sections 15(1)(a) and (b) empower the Court of Protection to make declarations that “a person has or lacks capacity” to make certain decisions. Section 15(1)(c) empowers the Court of Protection to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done.” Given the very precise terms in which section 15 is drafted, it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA and others [2012] EWHC 2183 (COP), [2012] COPLR 730, para 48. Moreover, it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to “lawfulness.” The distinction is important: see the analysis in St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115, paras 11-18.
  4. Thirdly, a declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority, paras 118-128 and, most recently, MASM v MMAM and others [2015] EWCOP 3.
  5. All in all, it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction

Appeal, Special Guardianship Order to a stranger

 

The Court of Appeal in Re H (a child) 2015 considered the decision from a circuit Judge, Her Honour Judge Wright, to make a Special Guardianship Order to a woman who knew the mother through church as opposed to placing the child with the father.  From the material before the Court, it appeared that the prospective Special Guardian had been observed with the child for about an hour.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/406.html

 

This case, as it deals with how to conduct the balance properly, and making it plain that all of the strictures of Re B, Re B-S et al still apply (as it involves the permanent removal of a child from a parent) makes for an interesting comparison with the Court of Appeal in Re E-R (a child) 2015   where they made it even more explicit that in private law disputes, there is no broad presumption that a natural parent is the best person to care for a child.

http://suesspiciousminds.com/2015/04/27/no-broad-presumption-in-favour-of-a-natural-parent/

 

The Court of Appeal (rightly so in this case) were critical that the PLO process had not been properly followed. These weren’t nitpicking complaints, but actually went to the heart of why the case had been decided in a flawed way and why there had to be a re-hearing.

 

There had been no continuity of judiciary, no continuity of representation, the parties had not properly identified the issues and hence the Judge had not been able to properly narrow the issues at IRH, and critically proper thought had not been given as to whether the expert in the case ought to be asked to either provide an addendum or to be called to address what was really the key issue in the case.

Could this father, having undergone therapy and developed insight, now care for this child to a ‘good enough’ standard, or did the expert’s prior report indicating that he would need to have another person alongside him to co-parent still stand?

  1. The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.
  2. The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.
  3. The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.
  4. Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.
  5. The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.
  6. In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.
  7. There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge

 

The underlined portion of paragraph 16 is important – the LA here were relying on Dr Campbell’s conclusions that the father could not be a sole carer for H, and the Court of Appeal took the view that it was they who were responsible for updating Dr Campbell and getting fresh evidence before the Court whether the change of circumstances changed his view (and moreover, responsible for paying for that)  – rather than the father, as it was his case that he had changed.

Worth bearing in mind.

 

I found it a little odd that the Court of Appeal were not even more interested in threshold, which seems on the thin side post Re A and Re J (particularly given that this child had been with father as a sole carer during the six months of the care proceedings)

  1. The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16′ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ’emotionally available’ to help her make sense of her experiences.
  2. The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

 

The father also produced evidence from professional bodies and groups – given that what was being said was that his autism (in whole or in part) was why he could not parent as a sole carer and needed another adult to provide day to day support and care. The Court of Appeal were critical that this evidence was not properly analysed in the judgment – yes, the Court could have decided that it did not tip the balance in favour of the father, but to do so, it would have to have grappled with the evidence and set out an analysis of why it was found not to tip the balance.

 

18. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

  1. The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

    I do not accept the support offered by way of his family, MENCAP, and NAS would be sufficient to meet [H’s] need for a co-parent to assist [the father] if she were to remain in his care in the longer term

  2. First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

    “The difficulty he has is that, as was made clear in the previous proceedings, he does not have a reliable person who can provide primary care for [H], who will be attuned to her changing needs, and with whom he can work in partnership. Sadly, the evidence from the parenting assessment, [the social worker] and the guardian’s (sic) indicates [H] remains at risk of harm in her current circumstances.”

  3. The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.
  4. It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

 

A further criticism was that the father had wanted to call evidence from family members and had had this request refused. I know that this is an issue that greatly troubles Ian from Forced Adoption, so I will set out the Court of Appeal’s ruling on that (which he will like)

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

 

If a Court is going to refuse to hear evidence from witnesses, they will have to give reasons for that, and set out very clearly in the judgment why that was decided.

Ryder LJ was very clear that the problems in this case and judgment arose fundamentally from a failure to have a proper IRH

  1. All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.
  2. At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

 

The Court of Appeal were unhappy that there had not been a proper Special Guardianship report, which is of course a statutory requirement.   There is something VERY IMPORTANT in this bit, which is going to make 90% of my readers groan  – the Court of Appeal rule that if an SGO is sought, there should be an application. Rather than, as usually happens, the Court is asked to make it of its own motion.  Either the prospective special guardian or the LA should make a formal application.  [And that s10(9) applies to such applications – which in a practical sense means that anyone other than a person with whom the child has lived for at least a year, or has a residence order  OR has consent from everyone with PR to make the application, is going to need leave of the Court]

 

{There’s a slight bit of wiggle room here It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason.    so if everyone agrees, you could still ASK the Court to rule that a formal application isn’t needed. Given that there is an application fee, and the Court service is financially straitened, I’m not sure I’d count on that. At the very least, you are going to need to know prior to IRH whether the Court is going to agree to use that power, or insist on a formal application and possibly a s 10(9) application. Remember that both can easily be foreced by one parent saying that they resist. }

 

  1. What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.
  2. In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.
  3. In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

 

The final major criticism was that given that this was a stark choice between two options (dad or prospective SGO) the Court had not properly allowed the father to challenge the assertions that the SGO would be able to care for the child.

  1. The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.
  2. One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.
  3. All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.
  4. The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

The Court of Appeal was very damning in Ryder LJ’s final remarks

  1. I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.

And we can throw in a word like “circumcision” / cos we ain’t going in for Eurovision

 

In Re W (Children) 2015, the Court of Appeal had to deal with an appeal arising from a refusal to grant a parent leave to oppose the making of an adoption order.  [I know that like Rizzle Kicks you are saying “Let’s snip to the good bit” – have patience, it is about a third of the way down the page]

http://www.bailii.org/ew/cases/EWCA/Civ/2015/403.html

 

As the case was being dealt with by the President (amongst others), we were always going to begin with an admonishment about Practice Directions.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

It can only be a matter of time before the President issues an edict that prescibes a rap over the knuckles with a ruler for breaches of PD27. Or perhaps a dunces cap, constructed of foolscap paper, to be worn by those responsible for the breaches for the duration of the proceedings.

I can see that it must be irksome for a Judge not to have the signed and dated documents in front of them, this seems a far more legitimate complaint than whether the documents are on double-sided paper. But nonetheless I am adding it to my file of “The Welfare of the Bundle is Paramount” cases.

There were a lot of gripes about the original way that the trial judge managed the application, but it finally turned on this particular point:-

  1. In the first of those two paragraphs, Judge Watson said this:

    “So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

  2. The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

    “I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

    As approved by Judge Watson the final paragraph reads as follows:

    “I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

  3. I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

    “upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

3 The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

 

And that, of course, is the Court making an Adoption Order on a conditional basis, which is not allowed.

 

  1. The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?
  2. In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.
  3. I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.

 

Nicely argued. You can’t really say that adoption is the last resort (but only if the child no longer has a foreskin).

The underlined bit is odd –  there are a great many male children who have such an operation without there being any medical reasons – we can see the parental desire for this procedure was religious / cultural – so wouldn’t that be your starting point for having the process undertaken?

I can’t find from the judgment how old M was – certainly under the cut-off point for adoption. If he was say five or six, I can see why a GP / hospital consultant might be nervous about the procedure without medical cause. But surely it was a solveable problem. It was perhaps fortunate that the appeal arose, as otherwise this child would have been in a Schroedinger’s Cat style limbo – he can’t be adopted without the circumcision, but the LA can’t get the circumcision done. And no simple vehicle for taking that back to Court to vary the order, and they could have run out of time to lodge the appeal. It could have been very problematic  (which is a major reason why you can’t attach a condition to the making of an adoption order)

 

The other two legal quirks in the case were these.

 

Firstly, in the care proceedings, nine days before the final hearing on a younger sibling JE  began, the parents produced a letter from an Aunt who wished to care for the children.  That led the Judge to decide that the case could not be concluded, but that he could conclude that neither parent could care for JE

  1. On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
  2. First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
  3. Secondly, Judge Cleary ruled out both parents as carers for Je:

    “I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

  4. The legal significance of this is that North Yorkshire was a 2008 High Court authority thought by some (me) to have been a pragmatic solution to a tough situation and being hard to justify given what the Court of Appeal said in Re G that it is no longer a linear ruling out process. North Yorkshire is exactly that – the Court ruling out the parents and then having a later hearing to consider an alternative carer/ adoption. I thought North Yorkshire was dead in the water after Re B, R B-S and particularly Re G.

The President gave it an unexpected kiss of life in Re R, but in that case the Court had not been asked to determine that issue and it had not arisen, so his remarks were at best obiter.  Here however, they are ratio and are binding.  It is official, North Yorkshire declarations are compatible with adoption.  (I can’t see how, but I don’t make the rules, I just write about them)

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.

 

Flowing from that, just days after the Court had ruled both parents out as carers for JE but embarked upon an assessment of the aunt, by happenstance, the leave to oppose adoption hearing took place, before a different Judge, Judge Watson.

At that time, the ISW had not reported on the aunt as a potential carer of JE (and she was also putting herself forward as a carer for B and M).  Two days after the leave to oppose hearing, the ISW report DID arrive, ruling the aunt out as a carer.

 

At the time of the leave to oppose hearing then, Judge Watson knew that Judge Cleary had ruled out the parents as carers for JE, but had directed an assessment of the aunt, and the outcome of that assessment was not known.

There’s quite a law anorak debate about whether the findings and decisions of Judge Cleary were binding on Judge Watson, or whether they were a starting point that she was entitled to rely on, but could deviate from if there were reason to do so.

  1. Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.
  2. A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

    “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

    In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

    “unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

  3. It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.
  4. What Judge Watson said in her judgment on the point was this:

    “sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

    That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

    His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

    Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

    I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

  5. It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.

 

The orders were overturned and sent back for re-hearing, but for all of the legal high-concept and anoraking and argument, it was the Judge’s decision that M should be circumcised before the adoption order was finally made that really won the appeal.

No broad presumption in favour of a natural parent

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

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