(A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)
Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.
But anyway, here are four up-and-coming interesting cases. (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-
https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/ ) [And where else in legal blogging do you get both the Kinks and Jay-Z? Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]
The first, and most recent is RE H (A CHILD) (2012)
CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012
In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.
The interest for me on this one will be (a) how much of a bulwark it might be against the “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement.
I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.
There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs.
[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]
I will be interested to see if the Court of Appeal grapple with that issue at all. And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.
Next up
RE M (A CHILD) (2012)
CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012
This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out. It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh. No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.
The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.
[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]
“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”
It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.
Next
RE C (CHILDREN) (2012)
CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012
Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence. The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.
The Court of Appeal determined (again, the quote is from the summary of the case, and not the transcript itself)
Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.
This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere. [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]
And this one
RE P (A CHILD) (2012)
CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012
Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)
This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand. On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?
The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child. They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.
And oh, I see that another one I was waiting for is now up
RE (1) B (2) H (CHILDREN) (2012)
[2012] EWCA Civ 1359
CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012
This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.
The trial judge in this reported case decided not to go ahead with the finding of fact hearing, and was appealed.
Sadly, the appeal was unopposed, so the judgment is very short. In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold (and this may feed into the case above)
The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.
I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably
suesspiciousminds 
Re P is really interesting, because there are sometimes issues about when the court should fine threshold if there is to be no order and we’ve been discussing this recently. I think that there are limited options, in care proceedings, whatever the disposal. 1. the LA doesn’t meet threshold: the preamble should say so and the order is “No order on the application” 2. threshold is met, recited in the preamble and the order is No order on the LA application 3. the LA seeks to withdraw: permission to withdraw the application and no other order and you can’t have no order on the applition because there is no longer an application. Even if the children are returned home, if the court thinks that threshold are not met it should say so on the order and if the threshold aren’t met then it should be 1. above. Have I missed something? but some judges won’t be addressed on threshold in this latter circumstance and I can’t see why (not experienced personnally but I’ve heard of this and am puzzled).
In Re P, surely to make orders for the children to reside elsewhere, threshold has to be dealt with for the court to be able to make disposal orders? If the parents make no concessions, or not adequate concessions, then there has to be a hearing of some sort, though expert evidence may not be required? We know that the court can’t rubber stamp, despite the fact that the parties may agree and that there should be finding of fact Re C [1996] etc as the red book says “without such a statement, it was difficult to know what the basis for making an order had been.”
As usual. I’m happy to be told that I’ve missed the point – I’m here to be an example to others!
Actually I’m wrong: on 1. it should be appication dismissed
I do broadly agree with you Norma. I generally invite the Court to record that the threshold is met, even if I am seeking no order – IF the LA case is that the threshold is met. If it is not met, then I would have that formally recorded.
Here I think, we are in that area where the parents are willing to concede that the threshold is met (perhaps on the basis that the child making the allegations shows that the child is now beyond parental control? Or that the emotional relationship between child and parents is now so fraught that it can’t be repaired) and whether the LA can seek to go further than those concessions. The law says, so far, that they can, if the allegations are very serious.
But then, if the parents consent to the making of orders, and that there’s ‘get over the line’ threshold conceded, can the Court legitimately conduct that fact-finding exercise?
I suppose it will turn on whether the role of the Court in fact-finding is to determine the factual basis for making the correct order (a narrow construction) or to determine what happened or did not happen to a child, so that the right care can be given to the child (a broad construction)
I am afraid that the summary regarding Re H is wrong. It is to put it mildly a peculiar case.
I cannot do it justice in this short space but the trial judge did not make an ICO. He accepted that he had no power to do so.
He made an ISO and combined it with private law orders to ensure that mother and baby moved from the Midlands down to the West Country for mother to live initially with private agency foster carers and then to live near them for up to 2 years while being “reparented” on a less than 50% chance of success. The 3 month adjournment is essentially to see if mother comes good on her promise to take up therapy and whether the private agency foster carers stick to their declaration that they are prepared to do all this without being paid.
The case does not in any way extend s38(6) or approve the Munby LJ decision.
Thank you very much Walklikeacat – this is precisely why I am so keen to look at the full transcript, because you don’t get those nuances from summaries. Just like the BBC reporting that the “parents” in the fertility clinic got to keep the child was not accurate, when the Court had actually determined that they could have an assessment.
I’m afraid the summary on a certain commercial law reporting website is not terribly accurate then, at least about the order being made. The rest of it, is in line with the summaries I have read.