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We are all unquantified risks

 

This was a permission hearing, Re B and P 2014 heard before Ryder LJ

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1133.html

There were a number of features which made the permission hearing difficult, not least that the parents, their McKenzie Friends and the Court did not have any of the papers from the care proceedings, save for a transcript of the judgment.

So, Ryder LJ listed the case for a rolled-up appeal (the permission application first, and to go on to an appeal if successful)

Why did nobody have the court papers?

Well, the parents were in person, and their solicitors had sent the bundles off to the cost-draftsmen (if you aren’t a lawyer, that will be meaningless, so by way of explanation it means that in order to get paid, the lawyer has to send all of their papers off to a specialist who then draws up the detailed bill to send to the Legal Aid Agency, who then sit on it for nineteen months and then pay an arbitrary amount that bears little relation to the actual bill)

The parents had asked the Local Authority to give them a copy of the bundle and the Local Authority had refused.

Now, the Local Authority weren’t at this appeal hearing, so I don’t know their side of it. It might potentially be that there was felt to be some very good reason why it would be unsafe for the parents to have those papers.  Hopefully it is some legitimate reason and not just being awkward. I suspect if the reason was just ‘it’s not our job’ or ‘why should we do it?’ or ‘get it from your own lawyers’, that’s not going to cut it with the Court of Appeal.

The parents appealed on six points, two of which Ryder LJ kicked out straight away, but he was interested in some of the others.

[From the reported facts of the case, I am reasonably sure that the judgment that was being appealed was Parker J in Hertfordshire
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2159.html – there are SO many similiarities, it would be hard for it to be coincidence. Not least because both cases involve a father being convicted for assaulting a social worker and a dispute about a religious naming ceremony]

 

Mrs Haines, representing the parents as a McKenzie Friend, puts the nub of the case very neatly

The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?

The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?

 

 

This is a peculiar one, since despite a previously unfortunate history, it appears from the judgment that assessments were such that the parents were given an opportunity to care for their new child at home and it was the father’s violent outbursts to professionals which led to the shift in plan from placement with parents to adoption.

 

So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?

A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.

In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

I don’t know yet whether when the Court of Appeal tackle this case in full, with all the papers, and hearing from the other parties, the final outcome will be very different to Ryder LJ’s take, but it certainly raises an important and interesting aspect.

If the sole concern is that a parent is not co-operating with the Local Authority (even violently not co-operating), what is the risk to the child that justifies the State assuming care of the child?

There are some people who are violent to their partner and their child, and that bleeds into their violent outlook on life and approach to professionals. There are people who betray their violent tendencies and nature by the manifestation of their temper, and one learns of the risk that they would pose to others close to them.

But there are some people, maybe not many, but some, who just violently dislike social workers and are not afraid of saying so, but would pose no risk of violence to those around them.

This appeal might answer the question – if you’re not harming your child by doing so, are you entitled to be vile to social workers ?

If it does answer that question, there will be a lot of people interested in it either way.

There are two different perspectives here

(A) That the father was the protective factor against the established problems the mother had in providing care for a child, that he would need support from professionals and how can that support be provided if he is assaulting them physically when they visit?

OR, conversely

(B) If the major problem that the father has only happens when social workers visit, then it is solveable by just not having social workers visit.

It has tricky socio-political consequences, if the Court of Appeal do answer this point (and don’t hold your breath – remember that Re B went to the Supreme Court specifically to resolve the vexed question of emotional harm and completely ducked the issue)

If the Court of Appeal were to find that (A) is the right answer, then parents and campaigners will feel that this is carte blanche for social workers to cultivate a bad relationship with a parent and then rely on that same bad relationship as reason why the child has to be removed.

If the Court of Appeal were to find that (B) is the right answer, does that give a green light for parents to abuse and intimidate social workers?

Which is why I suspect a way will be found to duck the points that Ryder J raises.

[If there was a bet to be had on the outcome of this appeal, the sure thing is “If a parent or their McKenzie Friend asks the Local Authority for a copy of the court bundle to assist in an appeal, the Local Authority MUST provide it” (and probably that the LA must also produce appeal bundles and copies for the Court too) ]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. Jerry Lonsdale

    One just needs to look back on the Re.P of last year and the infamous Re.D (a child) [2010] Civ 1000 whereby appellant judges described in no uncertain terms that the hostility the parent (s) had shown towards the Authorities were much part of the wider problem that when parents are criticised by Social Workers they would become very resentful,

    Re.D paragraph 15, I quote verbatim however I pretty much know it word for word these days, as do many of your avid readers,

    “15. Mother’s hostility to social workers raises a problem which is all too familiar in the family courts. A parent whose capacity to care for his or her children is put in question is likely to resent it. Social services on the other hand have a duty to inquire and in some circumstances to take action. Often there will be an important question whether with a measure of support the parent or parents can achieve good enough parenting. If the parent has become resentful of the social workers, whether for good cause or for bad, it will for that reason be that much more difficult to provide support. This very often leads to the parent being criticised for lack of cooperation with the social workers, and, in turn, to the parent’s resentment of the social workers’ intrusion growing rather than diminishing. It becomes a vicious circle. It can sometimes then be easy for social workers to think that an uncooperative parent is for that reason also an inadequate parent, but the one does not follow from the other. The judge was accordingly right to say that a refusal to do the social workers’ bidding or even to be polite to them, whilst it may be regrettable, is not by itself any justification for the making of the care order. It may of course contribute in some cases to the unhappy conclusion that there is no scenario in which the parent can be supported to the extent that he or she needs. In other cases it may contribute to the yet more unhappy conclusion that the anger displayed towards the social workers is simply an example of generalised angry violence to which the children are likely to be subject as well. But neither of those conclusions are necessary ones. It all depends on the facts of the case. It is not uncommon for hostility and lack of cooperation to be confined to those who are perceived, however unfairly perceived, to be wrongly interfering in the family; and if that is the case it is quite often possible to find other agencies who can establish a working relationship with the parent and provide the necessary support. To try to do that is part of the job of the social worker.”

    That shows that for this particular case one should be looking at the hostility and determining the mitigating factors along with the question “would the dad be acting with the same hostility and “Violence” if the Authorities were not involved in the family life?”

    Re. P of last year went that bit further than Re.D in that the Appellate Judge determined that it was the actions of the authorities that led the Dad to become very hostile and aggressive in his approach towards the Authorities and that the Social Worker had simply poured petrol on to the already blazing inferno, in that case the Dad was simply pushed out and plainly ignored in any of the decision making process, that led to a campaign by the Dad of aggression in the form of emails, it was not physical violence but it would still be determined to be as such.

    Part of the role of the Social Worker is to determine all the factors, I feel that many in that field these days are simply forgetting to ask the simple questions WHY?, why are X,Y and Z happening, more so they are forevermore unwilling to address the mechanics in which X,Y and Z could be addressed.

    “A Nothing Else Will Do” should be the forefront of the Re. B and P appeal if given.

    I do not think the above would be a green light for increased aggression, one would hope that with the outcome it is shown in no uncertain terms just what parents sometimes have to deal with in these very difficult times, I have borne witness to many unruly Authority Figures as well and indeed it works both ways, these situations are so, so, emotive and imotional that there is no “Cooling off period” and what becomes more apparent is that the aggression and angst would bubble away on the back burner until it cannot be held in any more,

    Aggression doesn’t just stop and start at the close of a door, I would think that that would be the fundamental issue here, solve that and the rest will fall into place.

  2. Is is just me or is this the second case that has gone to appeal without no paperwork
    I do hope parents do well
    But I am angry at wannabe lawyers taking on cases with no paperwork so they proclaim for the whole case to then give hope to parents
    And when just like the other case documents are given nothing happens and parents lose out again
    Will this action being taken by wannabe lawyers getting to appeal and having it adjourned because no papers in the future make it worse for parents acting alone

  3. Jerry Lonsdale

    Having pondered on this some more, I was faced with a quite extraordinary situation whereby back in 2009 there wasn’t any legislation or guidance when appealing matters from FPC’s [Mags.] as they then were up to county Court level, and in mirror to the above, not only the point in that no papers were given to the parent the guidance did not explain what to do when the parent has the papers, I know the latter is not an really an issue and there are generalised PD’s as tho the processes and procedures, however 5 years on and there is still the galling matter of “Without Papers”, I do feel that in my own matter I was assisting with I did like the Judges approach to overcoming the hurdle, I feel it should be legislated in the same way as this particular paragraph of the appeal judgment was put

    [89] As Mr Lonsdale (who has ably assisted the mother with her appeal in his capacity as
    her McKenzie friend) pointed out when the appeal was lodged, there is a lack of
    guidance or clarity as to the procedures for dealing with appeals from the Family
    Proceedings Court under the new arrangements. Neither the Access to Justice Act
    1999 (Destination of Appeals) (Family Proceedings) Order 2009 or the Family
    Proceedings (Allocation to Judiciary)(Appeals) Directions 2009 which now govern
    appeals from decisions made by the Family Proceedings Courts in Children Act
    proceedings provide any guidance as to the procedure to be followed. Part VIII of the
    Family Proceedings Rules 1991 deals with the requirements as to what documents
    have to be filed and served by the appellant in addition to the Notice of Appeal but
    provides no guidance on procedure or what other steps are to be taken. This is
    unhelpful and especially so in the case of a litigant in person who, as a result of
    having lost confidence in her solicitors, did not have the benefit of having a copy of the
    bundle of documents which had been prepared and submitted to the Family
    Proceedings Court. Some basic steps ought to be provided for so that for example
    immediately upon issue of a Notice of Appeal the court’s administration should
    immediately arrange to ensure that the Family Proceedings Court file is made
    available to the County Court on loan pending finalisation of the appeal. This
    judgment is not the place to set out these or other considerations but I simply refer to
    the issues because they are matters which in my capacity as the Designated Family
    Judge for Greater Manchester I can give further consideration to with a view to
    ensuring that some local practice guidance can be made available to assist litigants,
    practitioners, administrative staff and the judiciary in how some of the issues should
    perhaps be dealt with.
    .

    I do know that it is now practice up in these parts that the FPC’s did just that, I am not sure if the SFC’s now a days will follow suit, one would feel that the matter in my case dealt with FPC and County levels, I am sure it would work with the County and COA levels, with the world of DX and tinter web these days I am pretty sure it would be only a matter of a day or two to have the file sent to the appellate court and then passed on to the parents, at least then there is some foundation for the parents, and/or MKF’s to mount a full and proper appeal, it would also avoid any further delays costs and stress to boot.

    Jerry’s final thought on this, why oh why are the solicitors for the parents not providing them copies of the important documentation throughout the whole of the proceedings, again doing that would at least enable to parents to understand fully more and seek appropriate assistance to progress matters further.

    • In the early evening of Wednesday 30 July 2014 I heard three linked permission to appeal applications brought by a mother and father of two children. The hearing was urgent and late in the day after what had been a very heavy and full day in court on other appeals. Judgment could not be given ex tempore in the usual way because time needed to be taken to give consideration to the serious issues raised by the parents and their McKenzie friends and that required reference to the documents in the proceedings, the majority of which are not before this court.

      Only thing I would say from
      Now on is apply for urgent appeal and go before judge with no paperwork
      Simple gives a stop on a placement while u are given time to get more evidence

    • Ashamed to be British

      D (A Child) [2010] EWCA Civ 1000 was my foremost thought too … I guess you’ve said it all.

  4. This is the Telegraph’s take on it. Although the headline is very misleading (the assault and threats to kill were rather more significant than the parents not naming the child), the body of the article covers the factual issues quite fairly

    http://www.telegraph.co.uk/news/uknews/law-and-order/11006786/Parents-accused-of-emotionally-harming-child-by-not-naming-him-win-right-to-appeal.html

  5. Pingback: We are all unquantified risks | Children In Law...

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