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Tape recording of an expert (a SHOCKING case)

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.

 

Re F (A Minor) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html

 

Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)

 

  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.

 

 

Holy wow.

 

Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.

 

The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)

 

  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?

 

  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  2. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”

 

Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this

 

  1. Responding directly to the schedule Dr Harper makes this concession:
    1. 12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

 

Yes, if I read a report from an expert that said

 

Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but

 

Mother said “I’m sorry for all the trouble I’ve caused”

 

I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  2. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”

 

 

I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.

 

As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session

 

  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  2. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  3. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  4. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  5. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.

 

 

[That does not sound terribly plausible]

 

  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.
  2. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  3. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.

 

 

The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-

 

  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  2. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  3. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  4. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  5. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  6. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  7. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

 

 

[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]

 

It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.

 

This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.

 

(I’m reminded a little of the Overegging the Pudding case  https://suesspiciousminds.com/2014/11/28/over-egging-the-pudding/    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)

 

It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

Law for social workers (part 3)

This time I’m going to deal with Placement Orders and Adoption Orders – and largely of course what the Courts are looking for when deciding whether to approve a care plan of adoption rather than placement with a family member.

I expect to be changing this page a LOT.  Adoption law is changing faster at the moment than Justin Beiber’s views about Instagram.

Quick sidetrack. I like dinosaurs.

Of course I do. That’s surprised none of you, I suspect. I would actually go to a real world Jurassic Park if they built one. I would actually go to a real world Jurassic Park like the one in the last movie where 42% of the guests were eaten to bits. I wouldn’t care. Sign me up, I’m going. Every day I pass Thomson’s window and sigh that there’s still no Jurassic Park brochures.

One of the first dinosaurs found, in fossil form, was Iguanadon, which means “Iguana teeth”.  (and frankly, if I’d dug up something as epic as the first ever dinosaur, I wouldn’t have been naming it after a chuffing IGUANA. I would have gone for Dragon-stone or Me-Grimlock or something. Iguanadon was actually the second, after Megalosaurus – so it’s not like there wasn’t a prompt – Megalosaurus is a great name. Don’t then drop the ball with “Kittendon”  or “Daddylonglegosaur”)

When they found it, there was also a spike. So, reasonable assumption, they put the spike on its nose, like a rhino. And they put it on all fours, like a rhino.

 

Then fossil-hunters found a bunch of iguanadon fossils in Belgium, and the iguanadon idea got flipped turned upside down

Check out THIS dude. I'm getting a time machine, and rebranding him Fonziesaurus. Which would probably stop Happy Days naming their guy Fonzie. And then how would I have ever got the name in my mind? Paradox!

Check out THIS dude. I’m getting a time machine, and rebranding him Fonziesaurus. Which would probably stop Happy Days naming their guy Fonzie. And then how would I have ever got the name in my mind? Paradox!

 

Honestly – when you look at this thing, which incidentally was TEN METRES long, is the first thing that comes to mind “Oh, it’s teeth are quite like an Iguana’s teeth?” what the heck, Victorian Paleontologists?

Okay, so that’s all sorted out viz-a-viz Iguanadons.  Only NO!  It is now believed that whilst the spike things did indeed go on the thumbs and not the nose, that Iguanadon’s weren’t always walking around upright going “Hey!” and possibly “Sit on it”, but that they were largely on all fours but they could rear up on their hind legs when they felt the need. So three completely different ideas about the Iguanadon.

And that’s pretty much what’s happening with adoption. The Court of Appeal keep saying “Hey, I tell you where this spike belongs on adoption” and everyone has to react and nod and go “Ah, yeah, I thought that too” and then just when we all get used to it, they flip on us and go “sucker, you were a damn fool for thinking the spike was on the nose, it’s on the thumbs, dummy” and so forth.

 

Deep breath – putting this off now. Let’s get to it.

 

The Court can’t make a Placement Order unless the parent has consented OR the Court has decided to dispense with their consent. And the LA can’t place a child with prospective adopters with a view to a later adoption application without a Placement Order.  And the Court can only make a Placement Order if the LA apply, and the LA can only apply if their Agency Decision Maker (ADM) makes a decision that adoption should be the plan for the child.

The Adoption and Children Act 2002 uses pretty plain language.

 

52 Parental etc. consent

(1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a)the parent or guardian cannot be found or is incapable of giving consent, or

(b)the welfare of the child requires the consent to be dispensed with.

 

If we’re learning anything about the Courts over this three article series (and we may well be learning more about dinosaurs at this precise time) it is that plain language is like anti-matter to Courts. They don’t care for it at all, and will quickly try to eradicate the heck out of it by complicating it.

So, this is the truly astounding bit. Every piece of adoption caselaw in the last three years, that has turned everything upside down and made huge differences to outcomes to children in cases has been about the word ‘requires’ in that section.

You and I and Fonzie know what the word ‘requires’ means. We aren’t going to need to google it. But that’s not enough for the Courts. It took them a long time to get around to it, but they pimped that word up to a level where you’d no longer recognise the word they started with.

Let us begin with the Supreme Court and Re B 2013 .

 

http://www.familylawweek.co.uk/site.aspx?i=ed114409

This is the case that decided that when considering the application for a Placement Order and thus a plan of adoption, the Court had to be in a position to decide that “nothing else will do”

 

Proportionality
194. Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court’s paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the “checklist” of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.

195. It is well-established in the case law of the European Court of Human Rights that “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention” (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the “health or morals” and “the rights and freedoms” of children. But they must also be “necessary in a democratic society”. The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236, at para 81:

“In assessing whether the freeing order was a disproportionate interference with the applicants’ article 8 rights, the court must consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of article 8 of the Convention (see, among other authorities, K and T v Finland (2001) 36 EHRR 255, para 154). . . . The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany (2000) 34 EHRR 1412, para 49, and Kutzner v Germany (2002) 35 EHRR 653, para 67). For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests (see Aune v Norway (Application No 52502/07) 28 October 2010, para 66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para 118).”

196. The Strasbourg court itself has consistently applied a stricter standard of scrutiny to the national courts’ decisions to restrict or curtail contact between parent and child than it has to the decision to take a child into care in the first place. This is because, as stated, for example, by the Grand Chamber in K and T v Finland (2001) 36 EHRR 255, at para 178, there is:

“. . . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.”

197. Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it.

198. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”

 

[I cannot stress strongly enough to you that  “nothing else will do” is the spike here, in the Iguanodon metaphor.]

After that, came Re BS 2013, where the Court of Appeal tried to put some rigour into social work statements and judgments and to get professionals to engage with that philosophy set down by the Supreme Court in Re B.

 

http://www.familylawweek.co.uk/site.aspx?i=ed117048

 

Adoption – essentials: (i) proper evidence
34. First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

35. Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

36. Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

37. It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.

38. Consider the lamentable state of affairs described by Ryder LJ in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, where an appeal against the making of a care order with a plan for adoption was successful because neither the evidence nor the judge’s reasoning was adequate to support the order. It is a lengthy passage but it merits setting out almost in full (paras 22-26):

“22 … what was the evidence that was available to the judge to support her conclusion? … Sadly, there was little or no evidence about the relative merits of the placement options nor any evidence about why an adoptive placement was necessary or feasible.

23  The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24  With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25  The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26  In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

39. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

Adoption – essentials: (ii) adequately reasoned judgments
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

44. We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

46. We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

Adoption – the current reforms to the family justice system
47. First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

48. Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

49. We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

Following the one-two punch of Re B and Re B-S,  “nothing else will do” became a mantra, a yardstick, a soundbite that was taken literally. The Court of Appeal did not help in this regard, because for about 15 months, they granted just about every appeal against a Placement Order – including at its low-point an appeal where a Judge had made a Placement Order where both parents had been recently sentenced to prison but hadn’t explained specifically in his judgment why “nothing else will do”

At this point, the spike is firmly on the nose.

We then have a shift.  The Court of Appeal had started to get cold feet about the bare mantra “nothing else will do”  – they were drowning in appeals, nobody seemed to know how to produce the judgments that would satisfy them and make a decision bullet-proof and the adoption statistics were utterly tanking, leading to Government raised eyebrows and hand-wringing in the Press.  A few cases had started to say “oh, you’re not supposed to mean ‘nothing else will do’ literally”

Re R 2014

http://www.familylawweek.co.uk/site.aspx?i=ed138081

 

50. The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child’s welfare, “nothing else will do”. As Baroness Hale of Richmond said in Re B, para 198:

“the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

She reiterated the point, para 215:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

“family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.”

In essence, the Court do have to apply the whole of Baroness Hale’s fomulation, not just the easily remembered soundbite element.

But the Court is looking at all of the REALISTIC alternatives to adoption and analysing them, not every single fanciful possibility and having to rule out everything.

52. At the end of the day, of course, the court’s paramount consideration, in accordance with section 1(2) of the 2002 Act, is the child’s welfare “throughout his life.” In this regard I should refer to what Macur LJ said in Re M-H, para 8, words with which I respectfully agree:

“I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.”

53. Likewise of importance is what Black LJ said in Re M, paras 31-32:

“31 … steps are only to be taken down the path towards adoption if it is necessary.

32  What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests.” (my emphasis)

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.”

54. I repeat and emphasise: At the end of the day, the court’s paramount consideration, now as before, is the child’s welfare “throughout his life.” 

58. The nature of that exercise has been helpfully illuminated by Ryder LJ in CM, para 33. Put more shortly, by Ryder LJ himself, in Re Y, para 24:

“The process of deductive reasoning involves the identification of whether there are realistic options to be compared.  If there are, a welfare evaluation is required.  That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors.  The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified.”

I respectfully agree with that, so long as it is always remembered that, in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.

59. I emphasise the words “realistically” (as used in Re B-S in the phrase “options which are realistically possible”) and “realistic” (as used by Ryder LJ in the phrase “realistic options”). This is fundamental. Re B-S does not require the further forensic pursuit of options which, having been properly evaluated, typically at an early stage in the proceedings, can legitimately be discarded as not being realistic. Re B-S does not require that every conceivable option on the spectrum that runs between ‘no order’ and ‘adoption’ has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are “realistically possible”.

60. As Pauffley J said in Re LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam), para 40, “the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched.” And, to the same effect, Baker J in Re HA (A Child) [2013] EWHC 3634 (Fam), para 28:

“rigorous analysis and comparison of the realistic options for the child’s future … does not require a court in every case to set out in tabular format the arguments for and against every conceivable option. Such a course would tend to obscure, rather than enlighten, the reasoning process.”

“Nothing else will do” does not mean that “everything else” has to be considered.

61. What is meant by “realistic”? I agree with what Ryder LJ said in Re Y, para 28:

“Realistic is an ordinary English word. It needs no definition or analysis to be applied to the identification of options in a case.”

(Bearing in mind that we spent two years bickering about what ‘requires’ means, it still amuses me that the President confidently asserted that we need no definition of the word ‘realistic’)

And the key punchy bit, where the spike was well and truly installed on the thumb of adoption and we were told that adoption stands on two legs

44. I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

We all understood adoption now. It has spiked thumbs, and stands on two legs.  You need to apply the WHOLE of Baroness Hale’s formulation

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

Not just the easy to recall last bit.

We now have Re W 2016

It’s really tricky to explain, but this was my attempt at it

Re W – no presumption for a child to be brought up by a member of the natural family

In a soundbite (because that’s NEVER led us into any trouble in family law)

There’s not a LEGAL PRESUMPTION that a child is better off with the birth parents or within the birth family, not even what’s called a REBUTTABLE PRESUMPTION  (i.e “you start with the idea that the child should be with the family, but if the LA can prove that this is harmful, they have rebutted that presumption”)

There is no RIGHT for the child to grow up within the birth family.

If you’re thinking that all of that just flies in the face of everything you just read, that’s why it is a judgment whose implications have not yet been established.

It MIGHT apply solely to cases like the facts of Re W itself – prospective adopters v birth family, and the Court saying that it is a straight welfare shoot out. It MIGHT not.

There are three really big paragraphs in the judgment

  1. Plunging a stake into the heart of nothing else will do

 

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare.

2. Once threshold is crossed, decisions about the child are on straight welfare  and proportionality grounds (not any presumption or right or duty)

As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.‘

3. There’s however, some sort of credit for parents BEFORE placement orders

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

If you can’t quite understand what the difference is between a fulcrum that is placed so as to reflect weight being afforded to any viable natural family placement and a presumption, you’re not alone. I haven’t yet met anyone that understands this.  I suspect that I am going to see the word ‘fulcrum’ in dozens of law reports until someone explains that actually, the spike is underneath the Iguanadon’s chin, and that it was used to pick up litter because Iguanadon was really a pre-historic womble.

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 89% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonziesaurus and be cool too.

https://unbound.com/books/in-secure

Law for social workers (part 2)

Ah admit it, you skipped straight here, didn’t you?  In which case, you missed a lot of cool stuff about lizards, that’s for sure.

 

In this part, I’ll tell you the key tests and principles from the Acts and case law, for each sort of order.  I will keep this up to date if the law changes, and it will be up on the front page on a tab.

 

Let’s start with the thing that is changing more dramatically than anything else at the moment, and it ISN’T an order.

 

Section 20 accommodation

 

Section 20 is the voluntary agreement of a parent for the child to come into foster care.  For almost 22 years of the Children Act 1989 it was completely ignored by the Court and barely got a mention. Then all hell broke loose.

It started with a decision by Mr Justice Hedley, where a mother was asked to agree section 20 consent immediately after a C-section. She also had learning difficulties and was basically scared into signing it by threats that if she didn’t, the social worker would go to Court and get an EPO.

From that case, which you can read about here,

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

the following principles were derived.  These are REALLY important for all social workers to know. I would seriously recommend having them on a piece of paper that you have on your person when doing any visit – because if the issue of section 20 comes up, it is on YOUR shoulders to evidence that you knew about all of this and took it all into account – the records are going to need to show all of it.

 

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

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

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

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

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

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

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

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

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

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

 

At the moment, Human Rights Act damages are being paid out by Councils not just for misuse of section 20 to get a child INTO care, but delaying too long in making decisions about a child’s future once they are IN care – an issue called section 20 drift.

 

The law has developed still further, with the Court of Appeal in Re N suggesting that section 20 agreements should always be in writing and that it is not sufficient for a Local Authority to rely on an absence of objection.  Also that if a parent withdraws their consent, the LA have to either get an immediate Court order (very very hard at present due to Court access) or return the child. I’d suggest that Re N is a major factor in the volume of care proceedings going up 20% this year, and it is going to keep going up.

Re N is here http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html  (don’t read it, because 98% of it is unintelligible stuff about international law, but if you MUST, skip straight to para 157

 

Be REALLY aware that going to a maternity ward to ask for s20 consent with a police officer there as back up is liable to make the s20 consent invalid as made under duress

  1. Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

 

And that leads us nicely into

 

Police Protection

 

 

First things first-  EVERYONE calls these PPOs  (because they sort of sit beside Emergency Protection Orders EPOs) but there’s no O. There is no Order. This is the police exercising their power to remove a child

http://www.legislation.gov.uk/ukpga/1989/41/section/46

 

46 Removal and accommodation of children by police in cases of emergency.

(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

(a)remove the child to suitable accommodation and keep him there; or

(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

 

And you can see from the statute that the test for this is pretty low. It is an administrative decision taken by a police officer at the time, on the scene.  There’s no filing of evidence, no legal argument, no representation of a parent, no voice of the child, and no Judge weighing things up

It is for that reason that the Court’s don’t like them and have made it clear that “Wherever possible, a decision to remove a child from a parent should be made by a Court not as an administrative decision”.   Police Protection should be reserved for situations where the risk can’t even be managed long enough to go to Court and seek an EPO. That’s a LOT rarer than their actual use.

Be warned, if a Court scrutinises use of Police Protection and thinks that the LA were involved and used it as a short cut or an easy way to get the child into foster care without having to go to Court, damages can and will be made.

 

Misuse of police protection – human rights claim

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

 

The lead case is Langley v Liverpool 2005, so these issues are not exactly new.  The Home Office Guidance above makes it really clear that s46 is an emergency power only, not to be used if the Court can make a decision instead.

 

Emergency Protection Order

 

The bare statute just says this:-

44 Orders for emergency protection of children.

(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—

(i)he is not removed to accommodation provided by or on behalf of the applicant; or

(ii)he does not remain in the place in which he is then being accommodated;

 

[It is quite often overlooked that actually ANY person can apply for an EPO – unlike care orders, where only the LA or NSPCC can apply. In 25 years, I’ve only seen a parent apply once for an EPO, but it can happen]

The Courts set a much higher test for EPOs than the Act does.

The lead case is Re X and B Council 2004

 

http://www.bailii.org/ew/cases/EWHC/Fam/2004/2015.html

There are 14 points in there which the High Court say MUST be drawn to the attention of a Court considering an EPO application – the case law has to be produced and the Court referred to these 14 points when making the application.

Critically for social workers

An EPO, summarily removing a child from his parents, is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons”. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety; “imminent danger” must be “actually established”.

 

If your statement or evidence in relation to an EPO does not ‘actually establish’  ‘imminent danger’ then you can’t have your order.

and

 

The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

 

It is probably the HARDEST order to obtain, and many would argue rightly so. The test set down by the High Court in re X and B, compared to what the Act says is the difference between a limbo bar and a pole vault.

 

Removal under an Interim Care Order

 

Again, the bare statute doesn’t say much

 

38 Interim orders.

(1)Where—

(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

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

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

 

The Courts though have set a higher test for removal under an Interim Care Order, and THAT is the test that social workers must address in their written and oral evidence

 

 

“that separation is only to be ordered if the child’s safety demands immediate separation.”

It may do no harm to invite particular attention to Wall LJ’s definition of “safety” in this passage in Re B and KB. The concept of a child’s safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court’s decision as to whether to grant an interim care order is the child’s welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view “KB’s welfare did demand her immediate removal from her parents’ care”.

 

Re GR and Others (Children) 2010

http://www.bailii.org/ew/cases/EWCA/Civ/2010/871.html

 

I was going to squeeze adoption into this part, but it has already been pretty long, and my Chinese food has arrived, so I’ll clean up adoption over the weekend.

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

Law for social workers (Part 1)

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or 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.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

An offer for Sunday

 

The people publishing my book, Unbound, are doing an offer today for the Olympics.

If you go to the site and use the code Rio16  you will get a £10 pledge for free.   If  you wanted the book, but have no money, this would be your chance.  As the tenner doesn’t go to the fundraising total, what would be even better  is if you use the code to turn a £10 pledge into a £20 one.

But I know that some of my readers are on very tight budgets, so if you wanted the book but couldn’t afford it, this is your chance. Today only, though.

 

The fund-raising is going really well. I reached the half-way point of the campaign (45 days of 90) yesterday, and we are at 78%.  Every single Pledge now helps get us over the line, and makes the book happen.  Thank you so much for everyone who HAS pledged, it’s an incredibly kind and thoughtful thing to do and is massively appreciated. If you’ve been meaning to do it but haven’t got around to it yet , let this be a tender, loving, nudge in the ribs   (much like an old married couple where one of them is hoping for breakfast in bed)

https://unbound.com/books/in-secure

Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii)if he absconds, he is likely to suffer significant harm; or

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

Re W – no presumption for a child to be brought up by a member of the natural family

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?

 

 

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