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Split-hearings and “non-accidental injuries”

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

Guidance on split-hearings

 

 

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

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

“(a) setting timetables […],

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

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

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

[…]

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

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

[…]; and

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

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

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

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

 

 

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

 

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

 

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

 

Probably not.

 

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

 

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

 

 

 

Non-accidental injury

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

 

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

 

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

 

 

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

 

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

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

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

 

 

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

Guidance to Local Authorities where one parent murders the other

Thankfully such cases are relatively rare – not perhaps as rare as one would hope – a third of female homicide victims are killed by their current or former partner (the figures for male homicide victims are 6% – males can of course be the victims of abuse, not just the perpetrators).

Dreadfully, the Home Office crime statistics reflected in 2001 and 2005 that this represented two women per week.   (And even worse, if that is possible, the statistic that treating the physical injuries from domestic violence accounts for 3% of the annual NHS budget – Wellby 2004)

In such a case, what ought the Local Authority to do about it?

The High Court addressed the issue in Re N v B and Others 2013

http://www.familylawweek.co.uk/site.aspx?i=ed115442

The children’s father had killed the mother and was imprisoned as a result. The children went to stay with their maternal grandmother, who in due course applied for an adoption order in relation to them. There was considerable debate before the Court as to whether adoption or Special Guardianship was the right order to make – there being no dispute whatsoever that the placement with grandmother was the right one.

The Court analysed the issues to be taken into account when making such a decision very carefully

22. The paramount consideration of the court when considering this issue is the welfare of the child throughout his life, in accordance with section 1 Adoption and Children Act 2002 (‘ACA 2002′). The court must consider which order will better serve the welfare of the particular child (per Wall LJ Re S (Adoption Order or Special Guardianship) [2007] EWCA Civ 54 at para 47 (iii)). There is no presumption in favour of one order or the other, each case turns on its own facts. In accordance with ss 47 and 52 ACA 2002 in considering an adoption order the court needs to consider whether the welfare of the child requires the consent of the father to be dispensed with.

23. One of the relevant considerations in this case is whether an adoption order would skew the family relationships in the grandmother’s home. The grandmother’s brother is the father’s father; the children’s parents were first cousins. The children live with the grandmother and maternal aunts and uncles. They have contact with another maternal aunt who lives nearby with her husband and son, and their great maternal aunts who also live nearby. In the event of an adoption order their maternal grandmother would become their adoptive mother. Their aunts and uncles would become their legal half siblings. The paternal grandfather would become their paternal uncle and the father their first cousin. Following the death of the mother the grandmother has severed all contact with her brother and his family.

24. This shift in family relationships, in the event of an adoption order being made, was explained in some detail to the grandmother by a Senior Practitioner in the Local Authority Adoption Team, as described in the special guardianship report. She notes the grandmother had an understanding of the consequent shift in legal relationships throughout the family in the event of an adoption order being made.

25. InS v B and Newport City Council: Re K [2007] 1 FLR 1116 the impact of an adoption order in family placements was considered important by Mr Justice Hedley, when refusing to make an adoption order in favour of a special guardianship order. At paragraph 22, following a review of the underlying policy for adoption, he stated

One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming.’

26. The skewing of familial relationships is clearly an important factor to put in the balance.

27. Another important factor is the concern the grandmother has about the father seeking to exercise his parental responsibility.

The last point was a particularly significant one here, since under a Special Guardianship Order, the grandmother would have found herself in the position of having to regularly consult with the father (who was after all, the man who killed her daughter) about the children’s upbringing, whereas an adoption order would end his parental responsibility.  The counterpoint to that is that it alters legally the relationship between the children, such that their grandmother becomes in law, legally their mother, their aunt becomes their sister, any cousins would become their nieces and nephews (and oddly, that their birth mother, becomes legally their deceased sister)

The Court concluded that in the circumstances of this case, the advantages of adoption far outweighed those of Special Guardianship

31.  I have reached the clear conclusion, in the particular circumstances of this case the welfare of each of these children throughout their lives can only be met by an adoption order being made rather than a special guardianship order. I have reached that conclusion for the following reasons:

(1) What both children need now and for the rest of their minority and beyond is a secure home. That is what their grandmother can provide, supported by the maternal family who live there or nearby. They wish to remain in her care. As the Children’s Guardian submitted there is no birth parent that can care for them.

(2) Although it is right that an adoption order would skew family relationships I am confident that despite the shift in family relationships that would follow, the children will know the realities of the relationships within the family. That is clear from the grandmother’s recent statement and the observation in the special guardianship report that the grandmother and the family are ‘secure in their knowledge of the children’s identities and they know the children’s histories’.  This view is supported by the conclusions of the Children’s Guardian at paragraphs 24 – 26 of his report.

(3) In this particular case a powerful consideration is the need for the grandmother not to have to share parental responsibility with the father. Particularly in circumstances where I am satisfied, from what the father has said, that he is likely to try and exercise it, even with a restriction under s 91 (14) and other restrictions under s 8. As recently as December 2012 he was declaring that it was unfair for him not to have contact with the children; that he will keep trying and will not give up; he seeks to maintain parental responsibility and will be able to carry on seeking contact with the children. The spectre of such applications will undermine the security of the placement that is so essential to the children’s future stability.

(4) Bearing in mind the background to the criminal offences the maternal family fear manipulation by the father, directly or indirectly, so that he could control the children’s lives. In the circumstances of this case that fear is very real due to the background of the father’s behaviour, and is confirmed by the papers in the court bundle from the criminal proceedings. In particular the psychiatric report, the pre-sentence report and the sentencing remarks from the Crown Court. He was described in the pre sentence report as being extremely controlling and highly dangerous. From what I have read I wholly agree with that description. I am satisfied that a special guardianship order, even supported with orders made under s 8 and 91 (14) CA 1989 severely controlling the father’s ability to exercise his parental responsibility, will not, in the circumstances of this case, provide the lifelong security that these children need in being securely placed with their grandmother.

(5) The grandmother has carefully considered the consequences of adoption and the lifelong nature of adoption. They have been explained to her by the senior practitioner from the adoption team, as set out in detail in the special guardianship report. She understands the change to the children’s birth certificate would mean that the mother’s name and details would be removed. She does not plan to change the children’s names.

(6) In her most recent statement the grandmother deals with the religious objections raised by the father to an adoption order. She sets out very clearly how she sees the adoption of the children by her in the circumstances of this case (where she does not intend to change the names, and where any limited inheritance consequences can be covered by putting arrangements in place). She is satisfied, in the circumstances of this case, with the arrangements that would be put in place by her, that adoption is acceptable under Islamic law. I agree. This is endorsed by the Children’s Guardian, who says he is confident the family can manage this with sensitivity and support.

(7) I agree with the recommendation of the Children’s Guardian that permanence and long term safeguarding for the children can only be guaranteed through the making of an adoption order. For the reasons outlined above it is the order that best meets their long term welfare needs.
In those circumstances, I will dispense with the father’s consent as the welfare needs of each of the children, in my judgment, demand I do so.

The Court was very critical of the Local Authority, who had been directed to file a section 37 report and did so very very late  – 3 ½ months late (despite the circumstances of the case being one that an outsider might imagine that the LA would take seriously)

I imagine that this sentence may crop up in submissions in family law cases (in combination with the recent decision of Mr Justice Cobb that a Local Authority can be hit for costs when failing to undertake a proper s37 report)

I am quite satisfied the obligation is on the party seeking an extension of time to apply for one (in the absence of any other direction being given by the court). The court had made an order and the expectation is that it will be complied with.

(i.e, don’t just submit the report late, seek permission of the Court to do so in advance of the report being late. )

But then this bit is particularly important for Local Authorities

35.  I wholly endorse the guidance given by Mrs Justice Hogg in Re A and B [2010] EWHC 3824 (Fam) in particular paragraph 2 which provides

The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority’s legal department.”

And this bit from the same case is important too

 In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority

My initial thought was that it might not be utterly straightforward to establish that the threshold criteria was made out, and I had quite a long rambling discussion about that, which I can spare you all from.

The other reported case of Re A and B 2010  http://www.familylawweek.co.uk/site.aspx?i=ed82613  initially did not seem to help, as the threshold was dealt with by this single line

All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother’s death at the hands of their father.

But the High Court later go on to say :-

Threshold
1. In all cases where one parent has been killed by the other the threshold criteria will be met.

And thus, no further enquiry into the nature of the harm is needed. One does not need to explore how that harm is said to have manifested or would need to be evidenced. I can’t actually think of any other situation where threshold is so black and white – there’s no mitigation, no case specific issues, threshold is simply met in those circumstances.

(That of course, inadvertently means that a parent who kills the other in self-defence, perhaps during a violent assault by the other, has crossed the threshold and has significantly harmed the child; but crossing the threshold does not of course mean that the children would be removed. What about where one parent is driving, perhaps drunk and the passenger is killed? The surviving parent might well be charged with Causing Death by Dangerous Driving – it seems that the threshold would be crossed there as well)

Whilst one immediately thinks that it is one of the gravest offences that a human can commit and thus of course threshold is met, we know from many authorities, most recently Re J that being responsible or jointly responsible for the death of a child does not mean that the threshold is met in relation to other children in the future.

Local Authorities would need to be alert to cases where a parent murders the other, to ensure that they seize themselves of the matter and provide services and support to help meet the children’s needs at this dreadful time.

Supreme Court and emotional harm

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  - I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

Supreme Court to give judgment on emotional harm case on 12th June

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 http://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

“Lancashire Hot Pot(ato) “

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty's child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  - NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

Standing in the way of  (beyond parental) control 

A discussion of the little-used limb of the threshold criteria, and the interesting and deeply sad case of  Re K (A Child :Post Adoption Breakdown) 2012.   Plus, a judicial determination that Judges are not ferrets.  (I see how, with the ermine, folk might get confused)

The case can be found here (how I love Baiili)  :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/B9.html 

I have to say, in what’s coming up to eighteen years of care law  (my God, some of the babies I dealt with at the start of my career may now, hopefully, be going to university, and almost certainly will be legitimately buying alcohol)  I have only used the ‘beyond parental control’ limb twice; both times in relation to cases involving adoption breakdowns.

The attractiveness of it is that one does not necessarily need to apportion blame or find that it is poor or unreasonable parenting that has led to the significant harm; and it is for that reason that when it crops up, it tends to be in cases where a deeply damaged child is losing their second family. 

In this case, the Local Authority and the adoptive parents were at loggerheads about who was to blame for “Katie’s” parlous state. Without a doubt, the adoptive placement had broken down, and the relationship between “Katie” and her parents was very fraught.

This was an exchange of messages after Katie had been out of the home for a year

  1.  ‘Katie this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone.

You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented…

 

You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person.

 

We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’

 

  1. Katie’s response was robust. She replied,

‘you are NOT my mum and dad for starters!…you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’

[I pause here to say, that in the light of this sort of stuff, it is astonishing that the LA had such hostility towards the adoptive parents, and one wonders how much of the reasoning for that just didn't come through in the judgment. The tone might not be perfect, but it's far from awful or provocative]

Katie was diagnosed as having a reactive attachment disorder, and the Judge was deeply sympathetic to the suggestion that the efforts the parents made, which would have been kind parenting for another child simply did not work with Katie. At the same time, the Judge recognised that this was not in any sense Katie’s fault, but a symptom of her reactive attachment disorder.

[I know, you’re saying “get to the ferrets, I want to know about the ferrets”  - be patient. Your ferret-wishes will be granted]

  1. Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept Katie unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that,

‘the parents need to examine to what extent their well intentioned efforts to help Katie, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through Katie’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with Katie. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’

  1. Parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and Katie got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry…

48. Families who adopt children like Katie are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’

And that was really the crux of the problem. Everyone was agreed that a Care Order had to be made, but in order to make a Care Order, there had to be threshold. 

One would think, as an outsider, that the ‘beyond parental control’ was made for that sort of situation, and one might think that the entireity of this ligitation could have been avoided had a really bland threshold  (channelling those really bland ‘unreasonable behaviour’ petitions that are written by those rare divorce lawyers who are kindly and get the job done without fuss) been prepared.

Perhaps  “Katie has suffered significant harm as a result of absconding from her placement and being unhappy there, this harm has arisen from her being beyond parental control, which is caused by her reactive attachment disorder and not due to any conscious desire to cause harm on the part of the carers, or to cause trouble on the part of Katie. It is just very sad and unfortunate that this placement, which was intended to make everyone happy, has instead made them miserable”

Anyway, that’s not what happened.  The LA threshold document contained 39 allegations, some of which were deeply contentious, and the Court ended up trapped in a battle that ran thus :-

 The LA say that Katie is beyond parental control and that’s the fault of the adopters.

The adopters say Katie is beyond parental control and that’s not their fault.

Katie says she has been significantly harmed, but it’s not her fault.

(I again, go back to the honourable and worthy practice of being bland and inoffensive if it gets the job done)

The Court was not terribly helped by the expert on this particular issue (not because he was being unhelpful, but because he was speaking the truth. The legal niceties here were contributing to screwing this poor child up) :-

  1. Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when Katie conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.
  1. Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for Katie, Dr Richer’s opinion is that if the court makes a finding that Katie is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that,

’34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or Katie was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to Katie in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on Katie is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.

  1. In Dr Richer’s opinion, Katie does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if Katie is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

So, broadly, the Court had to grapple with, and find a resolution to, the question “Can a child suffer significant harm as a result of being beyond parental control without it being anyone’s fault?”

The answer, is “Yes”   and the Court sets out some excellent reasoning as to how it reached that answer.

  1. ‘the child’s being beyond parental control’
  1. That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.
  1. The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said.

‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense. It must be read together with the opening words of subs (2)(b) as follows: “…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.” The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection.

Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’

  1. The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18 March 1997 (unreported). Butler-Sloss LJ says,

‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’

  1. The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:

’3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

And this was how the judge dealt with threshold  (note the coruscation of the way the LA had chosen to put the case. I can actually feel in my shoulder blades how counsel for the LA must have felt whilst the Judge read all this out)

  1. These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.
  1. I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.
  1. The parents concede that at the relevant date Katie was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that Katie is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to Katie being beyond parental control or to the reactive attachment disorder from which she suffers.
  1. It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that Katie is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.
  1. This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.
  1. I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since Katie’s arrival at Greendale, I am not reassured.
  1. If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since Katie has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on Katie. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?
  1. The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to Katie being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.
  1. Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting Katie. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that Katie has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused Katie distress. Miss McGrath challenged the mother that some of her responses to Katie had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to Katie should not be looked at in isolation. They have to be looked at in the context of the fact that Katie suffers from reactive attachment disorder of childhood.
  1. Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of Katie’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that Katie is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by Katie’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for Katie’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel…’

I accept Dr Richer’s evidence.

  1. Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that Katie is beyond parental control. They also justify a finding that Katie was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Forensic ferrets

I adore how the polite exasperation pours through these sentences. One can almost feel the Judge reaching for a bottle of Milk of Magnesia and being able to attribute this particular ulcer to this particular issue…

  1. Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.
  1. The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.
  1. In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.
  1. This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.

The Boy under the stairs – an imaginary judgment

 

(Another one of my imaginary judgments – the facts may be familiar to some readers)

 

I am dealing with an application by X Local Authority for a Care Order in relation to a child who I shall name Harry, for the very good reason that this is not only his name, but that his first name is already well known to the public at large through the media interest in his case, he being “The Boy under the Stairs” of public notoriety.

 

His surname, and that of his carers, his aunt and uncle, are not known. I shall refer in this judgment to the aunt as P, the uncle as V, and their son, coincidentally the same age as Harry as D.

 

A reporting restriction order has been made, which will ensure that the surnames and any other identifying characteristics will not be published.

 

 

Harry is now fourteen years old. He had the most difficult start in life, his birth parents being murdered when he was literally a babe in arms. P, who is his maternal aunt, took him in and have cared for him since then.  I have heard and read evidence that this arrangement was certainly not entered into in good heart, nor even the sense of making the best of a fraught situation, but with a deal of truculence;  I heard V describe it as a “grudging arrangement” and that is sadly an accurate version of events.

 

Up until Harry was eleven years old, he had a relatively unremarkable life. His teachers noted that his clothes were not particularly kempt, that he was somewhat shy and quiet; it was noted that his cousin D (who attended the same school and lived in the same house as Harry) displayed a conspicuously higher standard of living and of money clearly being spent on D when it was not on Harry.  One school teacher produced a essay written by Harry entitled “What I did in the summer holidays” which described Harry living in a cupboard under the stairs and eating his meals in that cupboard whilst his aunt, uncle and D enjoyed a fine time in the family home without him. This was put down to a vivid imagination, and dismissed as fiction. We now of course, know this not to be the case. No blame can be attributed to his school teacher – I had the clear sense in hearing her evidence that this teacher who was a good, caring, kind and professional person has reproached herself more or less constantly since “The Boy under the Stairs” case broke, and whilst this may be of scant consolation to her my own conclusion is that she has no need to do so, and that any objective person in the same situation would have reached the same conclusion as she did.

 

 

I turn now to the findings of harm that I am invited to make. This has been a rather unorthodox hearing, since P and V were not seeking to care for Harry or seeking his return to their care, in fact they were adamant that he should remain in care and have no contact with them, but instead devoted all of their efforts into ensuring that the criticisms made of their care of Harry did not result in any consequences for their care of D.

 

I was invited at the outset of this case by those representing P and V to find that the threshold criteria was made out on the basis that Harry was beyond parental control, and not to make any of the other findings sought by the Local Authority.

 

I manifestly reject that invitation, which was certainly a bold submission.  The matters contained within the threshold are significant allegations and it would be of considerable assistance in the long-term care of Harry to establish which allegations are proven and which are not; they are of such consequence to Harry that it is appropriate in my view, for the Court to go beyond the concessions given by P and V (which effectively seek to place the blame for all matters upon the child himself).

 

In broad terms, the findings sought by the Local Authority were :-

 

  1. That from the age of 11, Harry has not attended school at all. He is now 14.
  2. That this lack of education has resulted in a boy who was bright and capable (even though he was never a high-flyer, he was certainly not dull) now having no grasp of basic matters that would be known to any child of his age.
  3. That he was made to live and  sleep in a cupboard under the stairs for his entire life with P and V until his removal. That the conditions of this accommodation were manifestly unsuitable, compounded by the fact that he shared this cramped, dark accommodation with an owl.
  4. That the scar on his head was the result of a non-accidental injury, perpetrated by either P or V.

 

I add, though this is not threshold per se, but an aggravating factor, that V had an extremely well-paid job and was perfectly in position to care for Harry and meet his needs, as can be seen by the high ‘standard of living’ enjoyed by D. It is an astonishing detail of the case, and one understandably embraced by the tabloid press, that whilst living in this cupboard under the stairs, Harry’s pockets were full of gold coins which could have afforded him a life of luxury if surrendered.

 

That gaping chasm in the quality of life enjoyed by D and the abject misery endured by Harry is said by the Local Authority to be an additional element of emotional harm. I shall turn to that aspect at a later stage.

 

The position of P and V  (though as indicated, they were clear from the outset that they had no desire to resume the care of Harry and described themselves as being “well shot of him”) in relation to these allegations was : -

 

 

  1. That Harry had been attending a private boarding school from the age of 11.
  2. That having arranged the private boarding school, they are not responsible for any gaps in Harry’s education as a result of paucity in the quality of the schooling he received.
  3. That Harry did live and sleep in a cupboard under the stairs, but only in the school holidays. The presence of the owl in said cupboard was Harry’s own choice.   [Parenthetically, I will add that in twenty years of sitting in the family courts, one gains a high threshold for what is surprising, but these two arguments in tandem were amongst the most surprising I have ever seen deployed, and one has to congratulate begrudgingly counsel for P and V for the chutzpah with which they made the most unpromising of arguments]
  4. The allegation that P and V caused the scar was strenuously denied, they stating that the scar had taken place on the same night that Harry’s parents were murdered and by the same assailant.

 

 

The private school


P and V were unable to provide the address of the alleged private school that Harry was attending, nor any school report, nor any correspondence, or any evidence from any teacher at this school. Their bank statements did not show any payment of private school fees. The private school they named is not known to the Department of Education, nor Ofsted, nor has frankly anyone ever heard of it. The fact that P and V could not even hazard a guess as to which county this school is in raises further doubt.

 

It would be fair for me to say that this was not the most difficult factual issue I have ever had to wrestle with. It is established beyond doubt that Harry did not attend any local school from the age of eleven, and the account of P and V that he attended a private school whose details they cannot provide, and who apparently provided this private education, including boarding , entirely free of charge, is utterly without merit.

 

I find that P and V did not send Harry to school for three years when he was in their care. Those three years are some of the most critical in his education, and emotional development and any proper parent (or relative acting in a parenting role) would have known that Harry should have been at school. Their lack of this most basic of parenting functions caused him significant harm.

 

The lack of education


Harry was assessed by a Child and Adolescent Psychiatrist, Miss Gale Terns, and the findings were astonishing.  His grasp of chemistry bore no relation to the science as practised since the Middle Ages and was closer to alchemy than genuine chemistry, biology restricted to non-existent plants, his understanding of the basic laws of physics was diametrically opposed to how they in fact operate,  he had no idea of history or geography other than that of fanciful creations of his own. Even on a less academic level, he had no idea of football, which is astonishing in a boy of his age, even a bookish one.  I have studied carefully Harry’s account of the sport he does claim to follow, and I am afraid that even making allowances for a young boy’s imagination and the psychological damage he has clearly sustained, this sport makes absolutely no sense.

 

He had devised his own intricate fantasy world, with its own rich internal rules and customs. Miss Terns concludes that this is by way of being a fugue state, the boy being so unhappy and living such a dreadful life that he had to fashion an escape from reality by creating something more appealing and satisfying. It is for that reason, that although he is fourteen, he is adjudged by the Court to not have capacity to instruct solicitors on his own behalf, and has been represented through his helpful Children’s Guardian.

His imagination is without doubt vivid, and the consistency of his own account (while utterly amazing) makes it easy to recognise that there is a keen if misdirected intelligence at work here. Had he been given mainstream education, there is much he could have achieved.

I agree with Miss Terns, the failure of P and V to provide Harry with mainstream education has been immensely damaging to him. The internal fantasies he created about having attended a school where wondrous things were taught as a substitute for having a genuine education means that there is much work ahead for those who are going to have to teach this young man genuine skills to be able to cope in the real world in which he will sadly have to live.  I am sure I speak for all of us that in glimpsing into the world Harry imagined himself living in, it sounds markedly more pleasant and entertaining than our own, and it is a harsh but necessary task to unpeel him from that one and bring him into ours.

The psychological damage that has been done to Harry through the poor quality care he has received at the hands of P and V is considerable, and the Court is grateful that Miss Terns has agreed to take on the long-standing reparative work that is required, and indeed for the Local Authority for funding such work.

 

The cupboard under the stairs


 

This was barely disputed. Given that the Court has already found that the account of P and V that Harry attended a private boarding school is a wild fantasy, their account that he only lived and slept in the cupboard under the stairs during the school holiday is rejected. The fact that they admitted that much is considerably damning.

 

The Court has seen the photographs of this small, dingy and cramped space in which a growing adolescent spent his days and nights. I  have heard from the neighbours that for months on end they never saw Harry, and that he was not even having the benefit of attending school or even seeing the light of day for long periods – weeks and months, rather than  minutes or hours.

 

I am satisfied that P and V provided Harry with accommodation and a standard of basic care which would have been woefully inadequate had they been living in an Elizabethan slum, let alone in a suburban home that many middle-class parents might aspire to live in. He was made by them to live and sleep in a cupboard under the stairs for his entire life. This is utterly unacceptable, and caused him significant harm. These were not parents of meagre means, doing the best that they could but that best not being enough. It is woefully apparent, from the lavish care and attention and material provision for D, that P  and V were more than capable of providing a child with much better than good enough care, and they deliberately chose to treat their own biological child far, far better than they did Harry, who was their kin and deserved so much better. The other harm I have identified in this judgment is compounded by the fact that Harry was faced on a daily basis with D who was being loved, and indulged and even spoiled. That in itself must have been hurtful and harmful to him.

 

 

The miserable day to day existence for Harry in such an unsuitable physical accommodation  was compounded by an owl being kept in this wretched accommodation with him. The smell was reported by those who removed Harry to be unspeakable. It is hard to fathom, even for this jaded Court who are faced on a day to day basis of new, creative and barbaric ways to mistreat children and let them down, to imagine what was going through the mind of P and V when they brought this situation about.

 

I completely reject their attempt to mitigate this situation by claiming that the owl was a pet and that it was Harry’s own desire to share his accommodation with the owl.

 

The scar


The Court has had the benefit of paediatric evidence from Dr Malcolm Foy, who was clear that there was no likely accidental explanation for the lightening shaped scar on Harry’s head. He gave clear evidence that the injury had been caused non-accidentally – the mechanism was unclear, but the only conceivable one was that a hot object, in the shape of a lightening bolt had been pressed against Harry’s head. No parent or carer could do this by accident.

 

P and V had provided no explanation for an accident that had caused it.  They had been the carers for Harry for every day since the death of his parents. There had been no hospital admission or medical attention for any accidental injury to Harry.

Counsel for P and V have urged me to take into account the strenuous and vehement manner in which P and V denied this allegation, and compare this to the very serious allegation that they kept Harry under the stairs which they instantly admitted at least in part.  This is probably the best of a bad bunch of arguments that P and V have deployed during this hearing.

 

But it does not hold water, when one considers the alternative. Either this scar was caused by P and V, who have behaved disgracefully towards Harry for 14 years, or it was inflicted on him by his birth parents when he was a mere infant.

 

The Court must find, therefore either that Harry’s birth parents deliberately inflicted this injury on Harry BEFORE P and V began caring for him.  [I should add, for the benefit of the transcribers and those taking a careful note, that when I use the term “caring” in relation to what P and V provided for Harry, I am using inverted commas] ,  OR that P and/or V inflicted this injury on Harry after they began caring for him.

 

Given the findings that have already been made, I must consider that whether it is substantially more likely that P and V (who I have found to have systematically abused this young boy for 14 years in appalling ways) injured him or that his birth parents, about whom no criticisms or allegations have been made, caused the injury and scarring. This young man had the worst start in life imaginable, and has grown up with no memories of his parents. This Court is not going to leave him with any residual doubt that his parents might have deliberately harmed him. It is inconcievable to this Court that the injury was caused by anyone other than P or V, and the Court makes that finding, that the injury was caused deliberately by either P or V and neither can be excluded.

 

The threshold is crossed, overwhelmingly so.

The Court is grateful for the active role that Harry’s Guardian played within that enquiry,  Mr Thomas Riddle has been a stalwart Guardian throughout, ensuring that matters were properly ventilated. The Court entirely agree with his conclusions, and adopt his formuation that it is impossible that anyone other than P or V caused the scar to Harry’s forehead.

 

I have considered, following those findings, the Welfare Checklist. I have no doubt whatsoever that the appropriate order to be made in relation to Harry is a Care Order.  The Guardian’s suggestion, in combination with the expert, Miss Gale Terns, that Harry be cared for by the Imperius academy for damaged children, is an excellent one and I am pleased that the Local Authority saw fit to put that forward as the care plan. The Court endorse that care plan as being the best thing for Harry. He will attend a mainstream school, and there will be no more of his life wasted thinking about “Hogwarts”

 

The Local Authority will need to consider, in the light of this judgment, whether to seek an order in respect of D.  He has, as I have acknowledged, had a markedly different life to Harry, but I suspect that witnessing all of this mistreatment must have had some detrimental impact on him.  It is hoped that he and Harry will preserve some ongoing contact.

 

The Court once again thanks Mr Riddle, for his efforts in representing Harry, which have gone above and beyond. I am even told today that Mr Riddle has kindly arranged to take the owl with whom Harry shared so much of his life, and to provide the owl with a home. This shows how much Mr Riddle thinks about Harry and wants to take care of him.  Harry is very lucky to have had Mr Riddle take an interest in him.

 

 

 

 

 

 

“You can’t handle the truth!”

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

what can the past of section 31 tell us about the future and the Family Justice Review?

 

 

No plan ever survives contact with the enemy

 

 

                                      Helmuth von Moltke the elder

 

 

 

I’m fairly sure that I’ll be writing about the Family Justice Review and their proposals on many occasions, but I just wanted to set aside any ideas for a moment about the merits of the ideas within it, or how practical they are to implement, and just to take the main headline idea and imagine how it will be once exposed to lawyers in the field; using the history of the threshold criteria and the litigation around that as an example.

 

I’m sure everyone who has done any public children work knows that the test for whether the Court can consider making orders that give the State (in the form of Social Services/the Local Authority) powers about children,  is the ‘threshold criteria’ set out in section 31 of the Children Act 1989.  (It is worth noting that the threshold criteria being met doesn’t mean that an order will be made or what it would be, but rather that it allows to proceed to the next stage of considering what is in the child’s welfare – no threshold means the State has to go away)

 

Section 31 (2) says “A Court may only make a care order or a supervision order if it is satisfied  -

 

(a)  that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)  that the harm, or likelihood of harm, is attributable to –

(i)            the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)          the child’s being beyond parental control  “

 

 

That appears to me to be a solid piece of drafting– positively wonderful by modern standards (where half of the relevant bits would be defined in Schedule 2 and another key element being with reference to other sections). It is self-contained – everything you need to know is set out in that one section, rather than cross-referring, and using everyday language and concepts.  [You can see, for example, that paraphrasing it as ‘the State have to prove that you’ve caused your child harm, or will probably cause them harm in the future, by not doing what the State expects of you as a parent’  distils the essence of it, without getting too far away from the concepts as stated]

 

Now, following contact with lawyers and thirty years of cases which have unpicked within it every single word other than ‘child’, the actual unspoken and unwritten, but legal meaning of the section is as follows, [original in bold, additions in italics]

 

 

A Court may only make a care order or a supervision order if it is satisfied [on the balance of probabilities, with the burden of proof falling upon the applicant Local Authority]   -

 

(a)  that the child concerned is suffering [at the time of the hearing of the application for the care or supervision order, or at the time when the local authority initiated the procedure for the protection of the child concerned provided those arrangements have been continuously in place until the time of the hearing – to cover the situation where a child is voluntarily accommodated before the application is made and would no longer be currently suffering significant harm at the time the application were made, it is possible to consider later acquired information as to that state of affairs at the relevant date but not evidence of later events unless these events can be used to show the state of affairs at the relevant date ] , or is likely to suffer [likely meaning having a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case, the seriousness of the allegations or the consequences having no impact upon the standard of proof to be satisfied,  and the facts upon which that prediction of likelihood is based having been proven to the balance of probabilities to have actually occurred, it not being sufficient that those facts may have occurred or that there is a real possibility that they did, and establishing that one child did suffer significant harm does not automatically establish that another child of the same family is likely to suffer significant harm, note also that the Court is not limited to looking at the present and immediate future but may look at the long-term future], significant harm [the harm must be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it; society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, it is not the province of the State to spare children all the consequences of defective parenting; the harm must be more than commonplace human failure or inadequacy, where considering whether a child’s health or development has been significantly harmed one has to compare with that which could be reasonably expected of a similar child; and

(b)  that the harm, or likelihood of harm [see everything above], is attributable to

  1.     the care given [which can go beyond physical care and includes emotional care] to the child, or likely  to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him [it is not necessary that there be culpability on the parents part who may be trying their hardest yet failing to reach the required standard of care and thereby causing significant harm, also this test can be met in a circumstances where one parent has caused significant harm and the other has not, or where a parent and a person other than a parent, such as a childminder, cannot be excluded from having perpetrated an injury to the child where the identify of the perpetrator cannot be established on the balance of probabilities even where there is only a possibility that the parents themselves were responsible for injuries that the child had sustained,  regard may also be had to whether the failure of a local authority to provide the necessary statutory support has contributed to this]; or
  2. the child’s being beyond parental control [this must have caused the significant harm or created the risk of such harm, there is no requirement to show some failure on the part of the parent in order to establish that a child is beyond parental control, and parental control is something which will no doubt vary with the age of the child]

 

 

and we have gone from an 87 word definition to nearly 700  words, nearly an eightfold increase; and from a definition of a vital concept which could be read (albeit with some throbbing about the temples) by an ordinary person  to one which is to all extents and purposes unintelligible.

 

 

The point is, that these were all ‘clarifications’ or glosses to the existing statute that were required, and which arose in the context of individual cases where those shades of meaning were vitally important.

 

I have particularly fond memories, having lived through it of the changes to “likely” where there was a period when one couldn’t tell from one month to the next whether a sexual abuse allegation was capable of meeting the threshold or not. Frustrating for the day to day job, but fascinating for the inner-law-geek.

 

This was largely through the H&R case which changed tack at various stages of the process until the House of Lords delivered a final decision in 1996.  During that lengthy process, the sands were shifting as to whether the law was going to import an additional test in accordance with David Hume’s philosophy that ‘extraordinary claims require extraordinary proof;  or in the gloss put on it by lawyers ‘that where the allegations are very serious, a higher standard of proof is required’, this eventually morphing into ‘for very serious allegations, the difference between the criminal standard of proof and the civil standard is, in truth,  largely illusory-  this last commonly asserted maxim, derived from some judicial remarks in firstly a sex offender order, and secondly an ASBO case took a second House of Lords case in Re B  2008 to finally resolve once and for all  that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied.

 

 

So, and here is the million-dollar question, how robust can a six month cap on the duration of care proceedings be, even if it is put into statute?  The fact that the FJR and the Government response both talk about there being a need for Judges to be able to make exceptions to the six month cap where the welfare of the child requires it, means that a  clause that says :-

 

Section 1   “The duration of care proceedings shall not, under any circumstances, exceed six months, the duration being calculated as being from the date that the proceedings are issued to the making of a final order”

 

cannot be what is being considered, and anything with more fluidity than that is just going to be litigated with vigour, to try to expand the definitions and categories and terminology that applies to the exceptions, and in the meantime, there will be a temptation to instead fudge the 6 month cap by saying that in the circumstances of this particular case, the child’s welfare requires additional time for the issues to be determined.

 

We are, after all, a group of professionals who spent from 1989 to 2008 arguing about what the word ‘likely’ meant, and aren’t necessarily done with it quite yet.

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