Tense – nervous, headache

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

Hence the title, and by now, you could probably do with an Anadin yourself

Re K (A child : Threshold findings) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
2. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

6. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
7. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
8. 1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

9. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
10. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
11. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
12. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
13. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
14. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside