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Tag Archives: section 37 Children Act

Court deciding of its own motion to remove a child into care

 

I’ve been writing more or less since I started this blog about my concerns regarding the power in section 37 of the Children Act 1989 for a Court to place a child in foster care of their own motion. (for non-lawyers, ‘of the Court’s own motion’ means that the Judge decides to do this himself or herself, rather than there being a formal application by the Local Authority.   There has been a lot of press attention on one young boy over the last week, but the Court of Appeal’s decision in Re K may have a considerable impact on a number of families. There’s a story here, if the Press care to tell it.

 

That power exists, that is beyond doubt. It is set out in section 37 of the Children Act 1989 that where a Court is dealing with a private law case (i.e two parents arguing about where a child should live or how much time the child should spend with either) they can direct that the Local Authority (social services) carry out an investigation and the Court can make an Interim Care Order for up to 8 weeks whilst waiting for that report.

 

Why does that matter?

 

Well, an Interim Care Order allows the child to be taken away from a parent and placed with another parent, or a relative or in care.

 

And why does it matter that the Court do it of its own motion rather than with the Local Authority applying?

 

Well, here are the protections you get if you are a parent, when the Local Authority apply for an Interim Care Order :-

 

(a) You get a period of notice – three days

(b) You get to see the Local Authority evidence – why should there be an Interim Care Order,

(c) Sometimes more importantly,what do they plan to do with it – the interim care plan

(d) You get FREE legal advice and representation

(e) The Court has to find that there are reasonable grounds to believe that the child has been harmed or would be likely to be harmed (the threshold criteria) and the reasons for this have to be set out in a 2 page document, that the parent can challenged

(f) There will be an independent Guardian, appointed to advise the Court on what is best for the child. They may challenge the social work view and have an alternative plan to put forward

(g) Finally and most importantly, the person who is asking for the application is NOT THE SAME PERSON as the one deciding whether to make the order.

 

With an Interim Care Order made under section 37 of the Children Act, these things do not necessarily happen. It might be that the parents have lawyers, but these days they probably don’t.  There might be a Guardian (but as we’re about to see, the wrong type of Guardian can be worse than not having one at all)

 

Re K (Children) 2014

 

This case, just decided in the Court of Appeal, doesn’t set out all of these concerns, but it is dealing with a case in which the making of Interim Care Orders under section 37 of the Act went badly wrong.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

I will put the killer line in first, because I don’t want this point to get lost

 

33. The judge had in her mind from the beginning of the hearing the jurisdiction of the family court to make an interim care order under section 38(1) CA 1989 where a section 37 report has been directed. The procedural protections of notice and an opportunity to be heard apply to a jurisdiction that is available to the court of its own motion just as much as they do to a jurisdiction invoked on a party’s application.

 

That is a big deal – the Court of Appeal have never said that before. Within the last couple of years, the Court of Appeal take on ICOs made under s37 has included:-

 

If the Local Authority report says no need for a further order, the Court can just tell them to write another one, and another one, and keep making Interim Care Orders until the Local Authority writes a report that the Judge agrees with

http://suesspiciousminds.com/2012/11/30/it-is-lawful-to-make-icos-under-repeated-s37-i-say-it-is-lawful-to-make-icos/

 

And that it was okay for the Local Authority to turn up at Court, pop in to see the Judge on their own and suggest this route and for the Judge to make an Interim Care Order under s37 even though the mother and her lawyer were AT Court and knew nothing about it

http://suesspiciousminds.com/2013/03/14/ex-parte-removal-by-the-back-door/

 

The Court of Appeal in this case also added that the law on removal is the same under s37 as when the Local Authority apply for it (again, the Court of Appeal have been weak on this in recent years)

 

35. The tests to be applied where a removal into public care is being considered by this route are: a) whether the court ‘is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)’ (the interim threshold as set out in section 38(2) CA 1989); b) whether the court is satisfied that the child’s safety demands immediate separation (see the authorities reviewed in Re L-A (Care: Chronic neglect) [2010] 1 FLR 80 CA); c) whether the court is satisfied that removal is in the best interests of the child (the welfare analysis required by sections 1 and 1(3) CA 1989; and d) having regard to a comparative welfare analysis of the options, whether the court is satisfied that removal is a proportionate interference with the child’s and other relevant persons’ article 8 ECHR rights

36.The interim threshold was satisfied by the determination made by the Recorder in his May judgment but that was not enough in itself to demonstrate an application of the other tests. The safety question described by Thorpe LJ in Re L-A was neither asked nor answered. It could not be because of the poor quality of the evidence before the court. In the absence of quality evidence on the point, not only was the safety issue not identified with sufficient clarity or particularity, but of necessity there could be no analysis of the evidence relating to it in order to conclude that a removal was justified.
 

37. Re L-A is the domestic legal test for the justification of removal that takes note of the Strasbourg jurisprudence i.e. the interference of the state in the article 8 rights of those involved in circumstances where there is an issue of safety. In order to identify the nature and extent of an alleged risk to the physical or emotional (psychological) safety of a child the court needs evidence relating to the prima facie facts. As has been explained by the President in Re G (Interim Care Order) [2011] 2 FLR 955, it is also necessary for the court to undertake a broad proportionality evaluation of the comparative welfare analysis of the options for each of the boys on the facts of the case to cross check whether a ‘more proportionate’ option than separation is available. That did not happen, but in fairness it could not happen, because those options were not identified and analysed in the evidence. The absence of this reasoning is fatal to the decision made in respect of A in this case.

 

So, yes, I think this is long, long overdue. If I were for a parent in private law proceedings and got a sniff of the Judge contemplating the atom-bomb answer of “If you two can’t sort it out, maybe the child should be put in care” you are going to want this authority to hand, and you are going to want to argue for three days notice.

 

Back to Re K

 

There were two children, one nearly 15 and one aged 12. The private law proceedings, as so often happens, had been emotionally fraught and acriminious. It was one of those cases where the children were saying that they didn’t want to see their father and there were doubts about whether that was a genuine belief or one instilled in them by their mother. The original Judge heard what was no doubt a very difficult case and decided to separate the children, one going to father, one going into care under an Interim Care Order made under s37 of the Act. The children had never been separated before.

 

No doubt because there was no agreement about how the removal and separation was to occur, a recovery order had to be made in accordance with section 34 of the Family Law Act 1986 and the removal happened late at night with the police in attendance. The circumstances were distressing to all involved, including at least one professional. B was so distressed that he evacuated his bladder and had to change his clothes. The removal was described by mother’s representatives as ‘violent’.

 

[This was not the first time, and sadly probably will not be the last time, that removal of children from a parent following a private law hearing has gone badly wrong]

The Court of Appeal upheld the appeal and decided that the Judge’s decision had been wrong. They were sympathetic as to how this had happened – the pressure of time to make a decision had caused everyone to rush into a decision without really taking everything into account that needed to be dealt with. It is a salutary lesson and the Court of Appeal treat it as such, that sometimes Judges need to step back from the time limits and pressures and say “This needs more time to consider”

The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone. If there is any lesson to be learned by everyone involved, it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do. I would suggest that the decision that was made in this case would not have been made in the way that it was had time been taken to reflect on the history, the implications for the boys, the options available and the patent need for further and better evidence.
 

This is one of those family cases that a family court judge instinctively knows will cause harm to the children involved whatever decision is made. With that in mind, the analysis that has to be undertaken must bring to bear an acute focus on the balance of welfare factors given the facts of the case. The children are highly enmeshed in their parents’ conflict and the order that Judge Marshall came to have to re-consider was expressly made with the words in mind of Wilson J. (as he then was) in Re M (Contact: Welfare Test) [1995] 1 FLR 274:
 

“Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b) of the CA 1989) is outweighed by the depth of harm, which, in the light inter alia of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order.”
An enduring solution to the problem that exists in a case like this depends upon a comprehensive welfare analysis derived out of specialist case management which identifies the problem with clarity, a well informed judicial strategy based on good practice and good quality evidence and a measure of good fortune. The building blocks for such a solution are rarely available in the context of an urgent safety enquiry i.e. in the heat of conflict and, as will appear from the circumstances of this case, it is not a dereliction of duty to stand back and take time to consider whether the building blocks exist. In this case, they did not.

 

As hinted earlier, the situation was compounded because being a private law case, the CAFCASS officer involved was very familiar with private law cases but had little or no experience in public law cases (i.e children being taken into care).  They also had an expert who proposed a strategy, but had no suggestions as to what to try when that strategy went wrong. There had been no Plan B

 

It might have been thought that the solution to the problem that had occurred would have been within the skill and expertise of the guardian and the expert who had recommended the strategy to date: sadly, it was not. As I have described, the expert had written to the court and the parties some time before the summer placement had broken down to say that the circumstances were beyond anything with which his clinical guidance could assist. That was surprising but in fairness there was also the issue of trust that had arisen because of the dual function that the expert had been expected to perform. The result was that the court lost the expert that it had previously decided was necessary. To add to that unfortunate circumstance, the guardian conceded during questions put by this court that she had no public law experience and that the good practice, research based options and/or evidential materials which should be the meat and drink of any public law Cafcass practitioner were not part of her skill and expertise.
 

The consequence has been, as she informed this court, that she has asked the family court for her functions to be transferred to another more experienced public law guardian i.e., as I understand it, an application for the termination of her appointment and her substitution by another guardian will be made before the next hearing. With the benefit of hindsight, the children’s guardian should have asked Cafcass management for assistance and that should of course have been disclosed to the court, leading to an application to the court to add another guardian (which is possible under the rules) or substitute guardians for the hearing before Judge Marshall.
 

It is not at all clear how much of this the judge knew. Some of it she could not have known because it was revealed to this court when it asked questions which had the benefit of hindsight. In any event, it would have needed a more detailed and nuanced hearing to establish that which is now known or identified as respects the problem to be solved.

 

The failure to properly plan was compounded because of course when the Judge makes their own decision to grant an Interim Care Order without an application, there is no interim care plan

 

38.It is almost an aside in this case to remark that even where the court has rightly decided to make an interim care order, it should as part of the process consider what in practice will happen to a child if the order is made i.e. the local authority’s proposals or their care plan if by then it exists. That is not the statutory obligation imposed on a family court by section 31(3A) CA 1989 because the requirements relating to a section 31A care plan do not by section 31A(5) apply to interim care orders. It is simply essential good practice to ascertain how the local authority that finds itself in this position is going to exercise its statutory responsibilities. That evidence is bound to be relevant to the welfare analysis and proportionality evaluation. I do not believe that in this case the divergence of professional view between the children’s guardian and the local authority social worker on the point was sufficiently investigated in evidence. It is perhaps sufficient to record that this court was told that if one includes respite, A has experienced three foster care placements already.
 

39. There were no formed proposals in this case because the local authority did not at the stage the order was made accept that an order should be made. This was not a case of a local authority being difficult. The only time available to the local authority to put together their proposals was the time during which the hearing was taking place where the local authority was not a party and its witness was not its decision maker. What was needed was more time for mature consideration. A plan, using that word in its non-technical sense, would of necessity have been skeletal and would probably not have extended beyond describing the means of recovery, the immediate placement into which A would go and the assessment or other planning process to decide what to do next. At the very least the court should have found time to give consideration to this question.

 

The fact that the Local Authority were present and were saying that there shouldn’t be an order ought to have given someone pause for thought. This course of action was always likely to go wrong.

 

The Court’s failure to consider the effect on the children of being separated from each other was also damning

 

I need not do more than state the obvious in a case of this nature. As young people who have experienced family courts, public care and relationship breakdown make very clear in, for example, the proceedings of the Young Peoples Board of the Family Justice Board, the separation of siblings can be one of the most traumatic elements of their experience, particularly where no provision is made for the sibling relationship to be maintained so as to safeguard their long term welfare into adulthood. Generalisations are dangerous, the intensity of sibling relationships can be very different and this court has not been taken to any of the research studies that consider this issue. However, it is sufficient to say that a sibling relationship is central to both the article 8 respect for family life which is engaged in a decision to make a public law order such as an interim care order and welfare, which by section 1 CA 1989 is the court’s paramount consideration when it ‘determines any question with respect to the upbringing of a child’. It will be a relevant factor in all or nearly all of the section 1(3) factors to which the court is required to have regard.
 

The absence of a value judgment soundly based in evidence about the effects on each of them of the separation of the boys was, in my judgment, almost as fundamental a flaw on the facts of this case as the failure to consider the safety issue and the proportionality of interference in relation to A. It went directly to the quality of the outcome of the court’s intervention for each of the boys.

 

The Judge met with the boys (in the proper way) but unfortunately her impression and observation of the boys leaked into her judgment  (Non-lawyers note, it is acceptable for a Judge to meet children for the purposes of explaining  who she is and what the Judge’s role is, and possibly for very very general chat, but not for the purpose of gaining evidence. We wait to see whether the Ministry of Justices proposal that children should routinely be able to meet Judges will change this, but that’s the current law)

 

The boys saw the judge but were told this was not an opportunity to discuss any issues in the case including their wishes and feelings. It is plain from the transcript of the discussion that they could not believe what they were hearing and the judge observed that ‘they were very concerned and very disappointed’. The judge in seeking to avoid a discussion about the evidence clearly felt unable to listen to them. She entered into a discussion about the inadvisability of the boys’ written communications that it is difficult to characterise as being other than an admonition. They boys left the process distressed and apparently even more convinced in their view that no-one was prepared to listen to them.
 

This case has not been about judges seeing young people. I shall return briefly to the wealth of material on that topic. The question which arose out of the discussion with the boys was whether, despite her best intentions, the judge inappropriately relied upon her impressions of the boys and what they said to her to come to conclusions in the case. Sadly, perhaps as an inevitable consequence of the charged emotions in this case, the judge made that error. There are a number of passages in her judgment where the problem is highlighted. I shall choose three:
 

“[26] The findings that I make on this evidence need to be considered in the context of the opportunity I had to meet with the boys this morning. The parties are aware that I felt that they are at the moment presenting as being rather out of control, not subject to parental influence or indeed able to set appropriate boundaries for themselves. I also formed the view that they had perhaps rather lost touch with reality in relation to what was going on and I do have a concern that they are rather immature and may somehow view this as some sort of fantasy adventure.
[…]
[24] […] My own experience this morning is that these children could exhibit considerable distress and yet were able to calm themselves very quickly and the word ‘histrionic’ was exactly the one which I would have used in relation to their behaviour that I observed.
[…]
[47] I was particularly struck by something that the Guardian said, which is that “it is almost like the children expect someone to put their arms around them and to say ‘do not do this anymore'”. Again that exactly resonated with my own assessment after seeing the children this morning. They are out of control. “
I need go no further than the recent judgment of this court in Re KP (A Child) [2014] EWCA Civ 554 for a comprehensive statement of the law that takes account of the Family Justice Council’s [FJC] April 2010 ‘Guidelines for Judges Meeting Children who are Subject to Family Proceedings’ [2010] 2 FLR 1872, the FJC’s Working Party December 2011 ‘Guidelines on Children Giving Evidence in Family Proceedings’ [2012] Fam Law 79 and the recent decision of the Supreme Court in the Matter of LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] 2 WLR 124. It remains an essential principle of the guidance and the relevant authorities that a meeting with a child is not for the purpose of gathering evidence. There is likewise an emphasis on the court hearing the voice of a child and of the court reminding itself that a child’s wishes and feelings may not be capable of being represented to the court by the adult parties. The court should ensure that the child’s access to justice is effective, whether that be through formal separate legal representation or the offices of a guardian, a family court advisor or a parent. Even where formal representation is appropriate there is a wide discretion in the court to determine the extent of a child’s participation.
 

I have regrettably come to the clear conclusion that the judge’s discussions with the boys strayed beyond reassurance, explanation and listening. It was certainly not the latter and to the extent that the boys needed it to be, the judge could and should have adopted the practice of listening, disclosing what was said and not placing reliance on it in her judgment. It is entirely possible to listen without gathering evidence. Where a process is intended to or as here inadvertently leads to evidence being gathered, including by very firm impressions and judicial assessments about the boys’ needs, wishes, feelings, behaviours and the risks which their own needs might occasion, then consideration should be given to whether that evidence should be gathered or considered by a suitable neutral person (an expert or a guardian who is not conflicted). In a case where the conflict that had arisen in this case does not exist, the children’s guardian could have been asked to sit in with the judge or read the transcript of the discussion to assess the material in context. A process needed to be agreed that permitted the evidence to be challenged without harming the boys themselves.
 

The judge’s reliance on her own assessments of the boys derived from her discussion with them was procedurally unfair and to the extent that her primary concern was that they were ‘out of control’ it dominated her thinking. That was a value judgment derived from evidence gathered by the judge in a discussion that was not intended for that purpose and which could not be effectively challenged by others.

 

 

Sadly, with a string of appeal points  being upheld, there was never any doubt that this appeal would succeed. I think the Court of Appeal were right to recognise that there are cases in which Judges are urged and feel that a decision has to be taken  (the politician’s syllogism – “Something must be done”  – “This is something” – “Therefore we must do this”   and that hard as it is to tell people that the decision needs more evidence, more analysis and more thought, with an unsatisfactory status quo remaining in the interim, sometimes that is the right thing for a Judge to do.   The Court of Appeal also remind the parents that the extent of their adult quarrel has been very damaging to their two children.

 

55.The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court.
56. The absence of a determination on the question of separate representation and the severe conflict that has arisen between the boys and their guardian and solicitor mean that I am persuaded that they have not been afforded access to justice. A separate representation application must be properly considered with evidence as soon as possible. I say to the boys who should be asked whether they wish to read this judgment, that the degree to which they may be harmed by being even further enmeshed in their parents’ conflict and inappropriately being involved in the decisions that have to be made by adults, will have to be balanced by the harm that is being done by their perception that no-one is listening to them. The conclusion of an application is by no means clear but whatever the conclusion is, it must provide for them to be listened to and to participate to an appropriate extent.
 

57.I return in conclusion to the boys’ parents. Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother’s approach has contributed to the damage that has been caused to the boys’ emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that.
 

58. The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court’s orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as ‘implacable hostility’ cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present.
 

59. Mothers, fathers or both are just as likely to be responsible for the precipitating circumstances in such a case which may be far removed from and are sometimes if not often, irrelevant to the conflict which endures. Such research as there is into available and workable solutions suggests either a) that there should be a careful analysis of the reasons for the conflict by fact finding to identify and assess risk to the children and sometimes to one or other of the adults and/or b) that if the reasons for the conflict do not present identifiable risks to the children or their carer and sometimes even if they do, a resolutions approach to the conflict can be adopted to try and resolve it by professional intervention such as individual or family therapy, external support from local authority children’s services or education and assistance from the various parenting programmes and activity directions that are now available under the CA 1989 or otherwise. Sometimes it is necessary to fundamentally alter a child’s arrangements by removing that child from the adverse influence and control of one parent by placing the child with the other parent and making a child arrangements order that has the effect of limiting the relationship with the harmful parent. In an extreme case (and I emphasise they are and should be rare) where the child is suffering significant harm or is likely to suffer significant harm, the court can intervene and exercise its ultimate protective function by removing the child from its parents and by placing the child into public care so that the local authority shares parental responsibility with the parents.
 

60. The removal of a child from the care of a parent whether by a transfer of living arrangements from one parent to another or by placing the child into public care is not and must never be a coercive or punitive measure. It is a protective step grounded in the best interest of the child concerned. In so far as there was a perception in this case that either the transfer of the conditional residence of the boys to their father by the Recorder or their subsequent removal from their mother was a punishment of the boys for their behaviour and for being unwilling to accept contact with their father, then that was inappropriate.
 

61, For a family to be facing the possibility of a wholesale change of living arrangements between parents because of the harm that one or both of the parents is causing is bad enough, for a family to face the removal of children into public care when they are both capable of caring for their children is, frankly, sad beyond measure. This is such a family. I say that without attributing any causative blame to one parent or the other in the sense of saying that one or other parent is responsible for the problem that now arises. That may or may not need to be determined by a fact finding exercise. This court does not yet know. Where the parents are to blame is that neither of them has facilitated a joint approach to the resolution of their conflict for the benefit of their children. It is time for this court to start saying that which is obvious. The family court is empowered to make decisions for parents who cannot make them for themselves but it cannot parent the children who are involved. When parents delegate their parental responsibility to the court to make a decision, that decision will be in the form of an order. The court cannot countenance its orders being ignored or flouted unless an appropriate and lawful agreement can otherwise be reached. That is not simply to preserve the authority of the court, it is to prevent continuing and worsening harm to the children concerned. Parents who come to court must do that which the court decides unless they agree they can do better and there is no court order that prevents that agreement.
In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.
One can only sympathise with any family court judge who is faced with such a case. There are no right answers but inevitably there are many wrong answers. To make it worse, in this case, the proceedings had to be re-allocated because of judicial indisposition so that the new judge came to the case without the detailed knowledge of the previous ten years of litigation. The hearing was said to be urgent so that, no doubt, all other judicial work stopped and the case took priority. It was said to be a case that needed an immediate order. Hindsight is a wonderful thing and the nearest a first instance family judge can get to it is to take time for reflection.

 

 

 

Interim care order appeal (unsuccessful)

 

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

 

Re W (A child)  2014

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

 

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

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

 

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

 

 

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

 

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

The mother appealed this.

 

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

 

 

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

 

 

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

 

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

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

 

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

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

 

 

 

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

 

 

 

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

 

 

 

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

 

 

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

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

 

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

 

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

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

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

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

 

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

 

 

 

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

 

 

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

 

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

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

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

 

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

 

 

 

“Ex parte removal by the back door”

A discussion of the Court of Appeal decision in Re L (A Child) 2013

 I will begin this discussion by being frank. I do not like this decision. I do not like it on a train, I do not like it on a plane. I do not LIKE green eggs and ham.

 I feel deeply uncomfortable with it, and hope sincerely that it is not used as precedent for any future decisions. I hope that it rests with the peculiarly unusual facts of this case only.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/179.html

 In very brief terms, the central issue was this. The Court had profound concerns over a number of months about a child and had a wealth of information about difficulties in the parenting provided to the child. The Court, faced with a shift in the Local Authority stance that the time had come to remove the child, used the powers under section 37 of the Children Act 1989 to make an Interim Care Order, which allowed the Local Authority to remove the child.

 So far, nothing terribly questionable. The facts of the case justified the making of an Interim Care Order, they probably justified removal, and the Court had the power to make an ICO under section 37 of the Children Act 1989 although no application had been made.

 My issue with the case is that what actually happened was the Local Authority deciding that if they placed the mother on notice that they intended to make an application for a Care Order / Interim Care Order, that the child would not be safe.  They obtained a hearing before the Judge, to which the other parties were not invited and did not attend and had no knowledge of.

 

The Court looked at the section 7 report prepared by the Local Authority, which made plain their escalation of concerns, their intention to issue care proceedings and their fear of what mother might do if given notice of that intention, heard from those representing the LA and made a section 37 direction and an Interim Care Order, with a view to a hearing being listed at which the parents could challenge that ICO.

 

  1. On 22nd January 2013 I granted Mr and Mrs S permission to appeal. At that time the understanding that they had, together with their counsel, was that at the without notice hearing the judge had, then and there, made the full 8 week interim care order. In the absence of a transcript of all save for the judge’s final “on notice” judgment, the understanding was that the “on notice” hearing that followed was relatively short, concluding in a judgment in which the judge sought to justify the steps that had already been taken at the “without notice” hearing.
  1. For the purposes of the present hearing we now have a full transcript of the without notice hearing and the on notice hearing together with a short memorandum from counsel, Miss Anna McKenna for the local authority, who appeared before Parker J on 14th December and again before us at this hearing. The greater clarity that those materials provide indicate that some time between 1 p.m. and 1.15 p.m. the s 7 report was handed in for the judge to read in her chambers. At about 1.50 p.m. the local authority team went into court for the “without notice” hearing. Miss McKenna’s recollection, which is confirmed by the transcript of the hearing which runs to just over two sides, is that this hearing lasted a matter of no more than 5 minutes. The judge stated that she had read the s 7 report and was contemplating making an interim care order but questioned the power to do it at a without notice hearing. The potential to utilise s 37 is raised by the judge and the scheme that was apparently adopted is encapsulated in one short exchange:

Miss McKenna: You can make a s 37 placing the child into our care, take the matter immediately and hear inter partes arguments.

Mrs Justice Parker: Including an application for discharge. Could I discharge the care order on that basis?”

  1. There is then a short discussion about security arrangements and the decision that the local authority have taken. The judge then twice states that she is keen to get “everyone in”. At the conclusion Miss McKenna says “may I take it that a s 37 direction has been made?” to which the judge replies “yes, a s 37 direction and a care order, and for the purposes of the transcript I am satisfied that there is a real risk of significant harm to this child if I do not make an interim care order prior to Mrs S understanding that this local authority is wishing to take care proceedings. There is no doubt about that.”

 

 

And the Court of Appeal felt that this was permissible and justified

 

In circumstances where, as I have held, the judge was justified in holding that this child’s safety required immediate protection by means of compulsory removal from her home, a submission that the procedural path chosen by the judge was technically not available to her is only likely to succeed if there is no escaping the procedural points that are made. This is not such a case. The course adopted by the judge is not excluded by any provision in the CA 1989, the FPR 2010 or elsewhere.

Mr Tolson accepts that, in an emergency, the court is not required to follow the pre-proceedings protocol in PD12A. He accepts that if an application had been made either for an emergency protection order or an interim care order it would either be commenced in, or transferred immediately up to Parker J in, the High Court where these long running proceedings were pending (Allocation and Transfer of Proceedings Order 2008, Art 5(3)). Given that M was a ward of the High Court, the local authority would in any event require Parker J’s permission before making an application for an emergency protection order or an interim care order and, before such an order was granted, Parker J would have to order the discharge of the wardship.

Whilst in another case, of course, the alternative steps that I have described could be taken, the fact that an alternative route exists does not mean that the s 37 route chosen by the judge was impermissible. To my mind, the legal requirement for the case to come before Parker J before any application for a public law order could be made, demonstrates the arid nature of the appellants’ technical challenge. Mr Tolson does not submit that Parker J could not have made an interim care order on 14th December or that, if the situation was properly regarded as an emergency, she could not have done so despite non-compliance with PD12A; his submission is simply that a different route should have been followed. It would, in my view, have been permissible for Parker J simply to have made the interim care order upon the local authority undertaking to issue their application that afternoon or the following morning. Finally, if the October s 7 direction had been made under s 37 (as a number of previous directions had been) no jurisdictional issue would exist.

In the unusual circumstances of this case, I am entirely satisfied that Parker J, who had concluded that M’s safety required an immediate order, was justified in using s 37 to achieve that outcome.

 

This is my problem, in a nutshell.  Where a Local Authority wish to initiate care proceedings and they think that the risks of doing so on notice are too great, there is a mechanism for making an application ex parte and having it heard before a Judge.

 The mechanism is to make an ex parte Emergency Protection Order application.

 And because the nature of such an order is draconian, and because the risks of making an order without the parents being there and represented are so serious and risk a breach of article 6, there are incredibly stringent requirements of the Local Authority, who have to demonstrate extraordinarily compelling evidence to do so, pace RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

It sits extremely badly with me that in private law proceedings (albeit ones that are about to become public law proceedings) a Local Authority can go in and see the Judge ex parte   [not least because they have no locus standi to make any sort of such application] and that a decision can be made which is in practice an ex parte Emergency Protection Order using section 37 of the Children Act, without any of the protective mechanisms of Re X.

I also think, for me, there is a wealth of difference between a Judge weighing up the facts of a case and reaching for section 37, and a Local Authority effectively asking the Judge to exercise the section 37 power to make an ICO without there being an application on the table.

I’ll make it plain, on the facts of this case, which the Court was extremely familiar with, there was a considerable argument that the removal was the right thing to do. There was some very peculiar stuff happening with this poor child, and the watershed moment had been reached.

And I suppose one takes into account that unlike a traditional EPO application where the Court knows nothing of the case but what the applicant tells them, the Court here had a wealth of knowledge.  I have pretty little doubt that HAD the application been framed as an ex-parte Emergency Protection Order application   [there’s sadly quite a bit of song and dance to how you get that heard by the High Court Judge who knows the case, rather than in the Family Proceedings Court] it would have been given and a judgment delivered that would have been safe from appeal. BUT it would have had to have had the Re X safeguards.

Or if the Court of Appeal had said, it is acceptable to use section 37 in this way, but the applicant should have the same duties as set out in Re X and the Court should approach the section 37 request in the same way, where the application is made ex parte.

 I really don’t like this decision, and for me, this is the second recent time that the Court of Appeal have looked at the ability of the Court to make an Interim Care Order (sanctioning removal of a child from parents without the parents having had sight in advance of the Local Authority case and a threshold document) using section 37 as the hook, and have taken a very permissive “the law doesn’t prevent this, so go ahead” stance, rather than focussing on the issues of natural justice and saying that it is a tool to be used with extreme care.

I probably would not have allowed the appeal, since the decision to remove was probably the right one, but would have made it plain that a Court in future faced with any such ex-parte consideration of using section 37, should have firmly in mind the principles of Re X.  

The Court of Appeal don’t, for me, seem to have contemplated that it was never envisaged that the Court would make a section 37 order and ICO without the parents being present or represented at a hearing, because it would TAKE PLACE IN PRIVATE LAW PROCEEDINGS to which they are parties.  It was never envisaged that a Local Authority would be having an ex parte hearing in proceedings where they had no locus (having been asked to compile a section 7 report).

It is lawful to make ICOs under repeated s37, I say it is lawful to make ICOs

 

A discussion of  RE K (Children) [2012] EWCA Civ 1549  which has just been decided in the Court of Appeal.

 

 

I previously blogged about the permission hearing here :-

 

 

http://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/

 The issue turns on this – in private law proceedings, the Court have a power to direct a Local Authority to make enquiries as to whether it is necessary to issue care proceedings – this is generally done when the Court begins to be so worried about the child’s circumstances that the possibility of care proceedings becomes a live one. The investigation is called a section 37 report.

 

The Court also has a power to make an Interim Care Order at the same time as making a section 37 direction – that is an order that allows the LA, if they decide to, to remove the child. So it is a very serious order, particularly given that :-

 

(a)   The LA haven’t applied for it

(b)   The parents won’t have seen a threshold document or social work statement in advance of the hearing

(c)   When making the ICO, the Court does not necessarily know what the LA will do with it  (or what the care plan is, in other words)

(d)   That the parents will not have known when coming to Court that day that there was a prospect of the child being taken off either of them and put in care  [as opposed to an application in care proceedings, where the parents are given notice and sight of the case against them and an opportunity, though a short one, to respond]

 

And so, making an ICO under a section 37 direction is a big deal. A very big deal, for article 6 purposes.  [I would have hoped that the Court of Appeal might have emphasised these things more than they did. They might, for example, have drawn the parallel between the rightly high hurdle for an Emergency Protection Order, where the parents have limited time to respond or defend themselves, with an ICO made of the Court's own motion]

 

What this appeal turned on, was the vexed question of whether, if the LA do their investigation and say “We don’t need to issue care proceedings and don’t need an ICO” ,  the Court has power to make another section 37 direction and ANOTHER ICO.   [In effect, to make ICOs in an attempt to make the LA change their report and issue proceedings]

 

That’s what the Judge did in this case.

 

I was fully expecting the Court of Appeal to say that this was an abuse of process and goes further than the Act intends 

 

Unfortunately, from my perspective, and that of the appellants, the Court of Appeal thought otherwise, and that the Court can make an ICO under a further s37 direction even when faced with a s37 report that concludes that the LA have investigated and don’t propose to issue proceedings.

 

  1. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child’s circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made’. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.
  1. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge’s exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court’s concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus:

‘[The court] cannot require the local authority to take proceedings. The limit of [the court's power] is to direct the authority to undertake an investigation of the children’s circumstances.’ [paragraph 123]

  1. Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.

 

 

Looking at the Act, there is nothing within it, or within case law that locks the Court into  one section 37 and one s37 ICO and one only, and that is how the Court of Appeal decided it.  But I respectfully think on the basis of natural justice, article 6 and proper process, it ought to have gone the other way.

 

For the avoidance of doubt, I think the decision is wrong, but not plainly wrong so that an appeal would succeed.

 

However, the Court of Appeal do say that where a Court does disagree with the s37 report and direct another one and make an ICO, it is incumbent on the Court to set out reasons.  [And that is why I don’t think they could be plainly wrong]

 

The Court of Appeal did say that if the ICO had been appealed at the time, the appeal would have succeeded, but this particular appeal was brought after the final Care Orders were made, the LA having yielded to strong judicial pressure and issued care proceedings

 

 

 

 

 

  1. Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother’s care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.
  1. It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B’s home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by ‘developing strategies’ to cope with Mr B’s behaviour. These concerns are mirrored in the note of judgment which continues:

‘I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children’s guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.’

On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.

  1. Mr Pressdee submits that the judge’s actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was ‘not minded to discharge the interim care order’ before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.
  1. Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.
  1. By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun’s circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.
  1. In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children’s guardian were significant procedural errors.
  1. If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.

 

 

 

On the broader issue of the appeal, that the Judge making the final decision about care orders had been biased, and in making his succession of ICOs under s37 he had effectively determined the need for care orders before considering the evidence as to whether they should be made, the Court of Appeal rejected this.

 

  • In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable. 
  • Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun’s carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge’s final conclusion should be set aside with the result that the whole question of this young boy’s future should, once again, be considered afresh by the court. 
  • For the reasons that I have given I would dismiss this appeal.

 [Though I think the appellants had a point here, a Judge who is making repeated s37 ICOs is basically both the applicant and the tribunal determining the application, and it doesn’t sit well with me. I have no way of knowing, of course, whether it was the Judge or the LA who had looked at the case the wrong way, but it does not sit well with me that a Judge who had effectively midwifed the care proceedings into being then determines the outcome of those same proceedings.   It seems to me that whilst justice might well have been done, I'm not sure that it was seen to be done. I have a great deal of sympathy for these parents, who never really came to terms with what they genuinely perceived as unfair treatment, and lost their children as a result of their unwillingness to engage thereafter.  My personal view is that when the parents asked the Judge to recuse himself from the case, that ought to have happened.  Again, sadly, I don't think the Court of Appeal were plainly wrong on this. ]

 

Here’s the case, make up your own minds

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1549.html

I’ve got (section) thirty seven problems, but a ***** ain’t one

 A discussion about section 37 of the Children Act 1989 and the pending appeal on  Re K (Children) [2012] EWCA Civ 1169

 

 

The case is discussed over at Family Lore, here

 

http://www.familylore.co.uk/2012/08/re-k-children-how-not-to-conduct.html

 

 

and Family Lore’s focus is on how the parents nearly messed up their very valid argument by the manner in which they presented the case.  That is a very good analysis and discussion, and I recommend checking it out.

 

I come at this from a slightly different tack, which is the novel and interesting point of law that Mr and Mrs B included in their grounds for appeal, namely that a series of ICOs were made, without an application for such being made by the Local Authority, the Court effectively making them of their own motion by using the powers under s37 and s38(1)(b) to make ICOs of the Court’s own motion.

 

 

The judgment granting permission to appeal can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1169.html

 

 

The bare facts are these.  Mrs B is the mother of two children, who the Court named “Tok” and “Tun”   (which are the most unusual pseudonyms for children I have seen in a judgment).  Tok was 15, Tun 12 ½.    The father of the child is Dr K, mum and dad are estranged. Mum remarried, and Mr B is the stepfather.

 

There have been extensive private law proceedings over about six years and at the time in question, the children had been living with Mr and Mrs B.

 

On 10th December 2010, the Court made a section 37 direction, inviting the Local Authority to prepare a report on the circumstances of the case and specifically to report as to whether it would be appropriate to initiate care proceedings (and if not, to say why not). Alongside that, the Court made an Interim Care Order.

 

This is the only situation in which a Court can make an Interim Care Order without a formal application and arises from

 

Section 38 (1) of the Children Act 1989 

 

Where –

 

(a)   in any proceedings on an application for a Care Order or Supervision Order, the proceedings are adjourned; or

(b)   the Court gives a direction under section 37(1),

 

the Court may make an Interim Care Order or an Interim Supervision Order with respect to the child concerned.

 

The purpose of that power is to enable a Court faced with private law proceedings where it appears that the child is suffering or at risk of suffering significant harm if an ICO or ISO is not made, to make one, which would be for a period of 8 weeks, which coincidentally or by design, is the timescale for the Local Authority to supply their section 37 report.

 

Mr and Mrs B refused to work with the Local Authority, and as a result, five days after the making of the ICO, the children were removed from their care.

 

Now, remember, that in making the ICO, there was no formal application before the Court, and therefore the Local Authority had not laid out to the parents the threshold criteria  (or the facts that led to concerns about significant harm)  and nor had the Court held a hearing to determine whether the legal test for removal of the children under an ICO was made out.  (It being settled law now that sanctioning separation at interim stage is more than just deciding that an Interim Care Order is the right order)

 

By 28th January 2011, the LA had determined that matters had cooled and that the children could be returned to Mr and Mrs B, and did not make any formal application for a Care or Supervision Order.

 

The Judge considered otherwise, and made another section 37 direction for the LA to report, making alongside it a further Interim Care Order, pursuant to section 38 (1) (b).  He also said that alongside that ICO, he did not sanction the children being returned to Mr and Mrs B whilst it was in force.

 

Now, this will be the nub of the appeal decision for me. I am aware that there are two schools of thought on the powers of s38(1) (b).   One (my own) is that it goes far enough to allow a Court to make an ICO or ISO whilst awaiting the Local Authority’s report and decision as to whether to issue proceedings, “to hold the ring” as it were. The other  (and one that I have seen in various County Court case and a couple of High Court cases) is that faced with a Local Authority who don’t share the Judge’s view that a section 31 application for a Care Order should be made, the Court can simply make a second and subsequent directions for further reports and further ICOs until either matters resolve or the LA see sense and issue.

 

The LA, in this particular case, changed their view to reflect the Judge’s strong views, and subsequently made an application for an ICO. But the children remained out of their care for at least some period, on the basis of a second ICO having been made, without an application, using a second s38(1) (b) order, rather than the traditional s38(1) (a) ICO on application.

 

 

 

 

The precise wording of the Act, as set out earlier, says that the Court can make an ICO alongside a direction for a section 37 report, and does not say that this can only be once, or can only be done if the LA have not reported.

 

But the obvious risk here is that rather than the application for a Care Order being prosecuted by the Local Authority, opposed by the parents, and determined by the Court, the Court is actually driving the application that it is in the position of determining.

 

It seems to me that whilst the first ICO is justifiable  (although I think it would be worth remembering that s38(2) is clear that the order can’t be made unless there are reasonable grounds to believe the threshold criteria is made out, and the Court ought to, if making an order, give a judgment as to why that is the case and why in the circumstances of the welfare checklist making an ICO is better for the child than making no order)   making subsequent ones put the Court in a dual position of seeking an ICO whilst also being the arbiter of whether one should be made.

 

I also suspect that at the appeal hearing, the Court of Appeal may be troubled by the judicial indication that when making the second ICO (that was, remember, not sought by the Local Authority) the Judge informed the Local Authority that he did not sanction them returning the children to Mr and Mrs B during that order.  That seems to me, to be a step too far.  A Court might indicate that the risks before the Court were high and that the current circumstances suggested that managing the risks with the children with Mr and Mrs B would be very difficult to achieve, but the Court has fettered here the Local Authority power to do what their stated intention was, which was to rehabilitate the children to Mr and Mrs B.

 

 

This is the basis on which the Court of Appeal granted permission for the appeal to be heard in full, although the time for appealing the ICOs was clearly long gone  (as usual, my own underlining):-

 

  1. Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:

a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is “really no doubt at all” that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B’s bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.

b) The judge’s stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B’s co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority’s sustained assertion that there were no grounds for a further interim care order, the judge’s decision to make two subsequent fresh s 37 directions, thereby maintaining the court’s jurisdiction to make interim care orders, must be open to question.

c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:

“…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S’s first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned.”

The judge then goes on to record that “all that has fallen away” following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge’s conclusion that the previous social work reports were favourable to Mr and Mrs B and were “comprehensive and thorough”, the court’s grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says “I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis….”

 

 

In the permission hearing, the Court of Appeal didn’t make comment as to the other two issues I have touched on here – that the making of the first ICO allowed the children to be removed without the Court ever having determined that the risks involved were proportionate to the children being removed from home at an interlocutory stage, and whether when making the second ICO the Judge went further than he was entitled to by telling the Local Authority that the Court did not sanction the children being returned by the LA to Mr and Mrs B during the course of that order.

 

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