Monthly Archives: May 2021

E-mail justice

Posted on May 28, 2021 by suesspiciousminds

This is a curious little appeal – I’m slightly surprised it went to an appeal rather than just got reconsidered at local level but it seems like the attempt to do that was rebuffed.

M (Children: Applications By Email) [2020] EWCA Civ 806 (28 May 2021) (bailii.org)

Basically, a Court had directed in care proceedings that there be a psychiatric assessment of the mother. The mother didn’t turn up for the appointment and the psychiatrist alerted everyone and offered a second appointment. Mother’s solicitors were asked why mum had not attended and they didn’t have instructions. The Guardian considered that the appointment should not be reoffered. The children’s solicitor, quite properly, notified the Court that there had been a slip in the timetable.

However, between draft 1 of the notification which was sent to the Court by email and it being actually sent, there was a development. The social worker informed the lawyers that the children’s grandmother had died a few days earlier and that of course the mother was devastated.

That really should have made everyone take stock and decide to notify the Court that the appointment was missed and that enquiries were going to be made as to whether a second appointment could be offered and once the impact on the timetable was known, the Court would be asked to consider matters.

Instead, the email went as drafted, without that key piece of information, but with a draft order for the Judge to approve. (Slightly oddly not the Judge dealing with the case but the Designated Family Judge).

Within 15 minutes of receipt of the email from the children’s solicitor, those representing the mother sent an email contacting the Court.

The Court made an order discharging the direction for a psychiatric assessment. Those representing the mother contacted the Court to ask this to be reconsidered and the Court said that the decision had been made and were standing by it.

So far as the court was concerned, the entire procedure consisted of three emails sent and received within a period of an hour and a quarter.

Hi, it looks like you’re lodging a draft order that isn’t actually agreed. Do you want to get it agreed ? YES / NO

The Court of Appeal in looking at this stressed that there are circumstances, such as the parties inviting the Court to consider a CONSENT ORDER to which everyone CONSENTS, where matters could be dealt with by way of email, but this was not a consent order and the email from the children’s solicitor had not even set out that some of the parties had an alternative view or were without instructions.

  1. Taking stock:

(1) There was, first and foremost, an obligation upon the mother’s solicitors to bring to the court’s attention a development that impacted on the timetable. The children’s solicitor was observing the ‘compliance order’ and following good practice by engaging with the other parties about this, and in drawing it to the attention of the court before a deadline was breached.
(2) However, the making of an application to discharge the order was evidently a step beyond what the compliance order required. It is far from clear why the Guardian considered that the assessment as a whole should be scrapped without some better understanding of the mother’s position. It is clear from the sequence of events that she formed her view before she knew of the mother’s recent personal difficulties, and that she did not revise it when that information was given by the local authority. There is no information about whether or not the children’s solicitor took the Guardian’s further instructions about making an application after that further information came to light.
(3) It is in any case unfortunate that the children’s solicitor’s message was not amended in the light of the information that became available after it was dictated and once it became clear that the application was opposed by the mother. The message to the court did not set out these matters as it should have done. Nor did it explain that on 7 April Dr D had offered the mother another appointment on 25 April.
(4) Further, an application made by email must confirm whether the proposed variation is agreed. The position of the other parties (the local authority, the children’s fathers and the uncle and aunt) was not stated, if indeed it was known at all to the Guardian and the children’s solicitor.
(5) By allowing requests to vary orders to be made by email, the court had used its power to dispense with the requirement for an application notice. In doing so, it had ordered that any such application was to be made to the allocated judge. We asked why this application had been made to Judge Williscroft, who is the Designated Family Judge and had had no previous dealings with the case, and not to District Judge Gillespie, the allocated judge. We were told that this is because the DFJ takes a close interest in the timetabling of cases in her area. That is as it should be, but it does not justify parties approaching a DFJ to make orders in cases allocated to other judges, unless there is some special reason why that should happen in a particular case.

The appeal was obviously allowed and directions made for the assessment to take place.

40. For these reasons, I conclude that the order was wrong and unjust for serious procedural irregularity: indeed, the error in the order was the direct result of the errors in the procedure. The appeal will be allowed and the order will be set aside. The overall circumstances speak in favour of a revision of the timetable, and not for remittal. The original order will revive, with revised dates and (because Dr D is no longer able to report in time) a different expert, who has been identified. The order will record that the mother has promised to attend her appointment and I know that those supporting her will help her to do that; if she fails without good reason, she can expect the order to be discharged. I hope she will be assessed, because even if the child cannot return to her care, the report will be of value in planning for their future, as identified in the District Judge’s original order.

Finally, I make these observations about the procedure for making applications without the filing of an application notice.

Rule 18 of the Family Procedure Rules 2010, which is in similar terms to rule 23 of the Civil Procedure Rules, concerns applications made within existing proceedings. The respondents to an application are the parties to the proceedings (rule 18.2). Rule 18.4 reads:

This framework allows the court to accept and consider applications made without a formal application notice and to make orders without a hearing. It is desirable, at a time when the courts are under considerable pressure of work and where remote case management hearings have become common, for these powers to be used flexibly in the interests of justice and, in the Family Court, in the interests of children. To this end, the court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice. The fact that it has given a general permission for applications to be made by email obviously does not prevent it from requiring an application notice to be filed in a specific instance.

Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement.

The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.

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Head-banging therapy

Posted on May 28, 2021 by suesspiciousminds

When I was at middle school, our deputy head announced that from that point on, at school discos, ‘head-banging’ was forbidden. She went on to explain how dangerous it was to bang your head on the floor repeatedly. This was one of the early moments in my life where I realised that adults are not infallible. (It’s particularly weird, looking back, because our school disco was run by the caretaker who owned only three records – Prince Charming, Stand and Deliver and Eye of the Tiger. We must have been head-banging to Eye of the Tiger. Also, frankly as none of us had long hair head-banging was utterly pointless )

Anyway, this case involves the welfare stage of a set of care proceedings, some devastating findings having been made at a fact finding stage by Keehan J.

K (Children) [2021] EWHC 1409 (Fam) (26 May 2021) (bailii.org)

Some of what Keehan J said about the parents included this: –

The mother and the father have serially lied to the court, to the social workers, to the children’s guardian and to every other professional with whom they have had contact, including the police and health professionals.

  1. The mother is the most egregious liar I have ever encountered. The father has also serially lied to the court, to the social workers and to the children’s guardian.

There was an abduction of the children during proceedings and a concealed pregnancy.

The President of the Family Division dealt with the welfare portion of the case

The Court instructed an expert, Dr Banks, to try to understand why the parents were locked into a pattern of denial of the findings and whether this pattern could be broken.

In oral evidence, Dr Banks said this:-

Because of the nature of the parents’ difficulties, and particularly the mother’s approach which is to push and talk so as to ‘bamboozle’ others, Dr Banks advised that the therapist needs to do, what he called, ‘head-banging’ therapy, so as to be directive with respect to each parent, rather than passive.

Dr Banks in his written report made these observations :-

  1. Dr Banks conducted three sessions with the mother and two with the father, each over a video link. With respect to the father, Dr Banks considered that there was a deficit in the father’s ability to integrate emotional and cognitive information in order to provide a sound conclusion. This deficit might lead to distortions in his presentation and to misunderstanding. The father is unlikely to understand the role of formal organisations and institutions and is unlikely to be able to balance competing priorities leading him to be ‘mono directional’ in his decision-making and choices. Dr Banks identified ‘a high level of denial and lack of insight as to the impact of the father’s overall behaviour on the outcome of the current proceedings.’ In short, the father did not consider that he had acted in a way that might demonstrate a lack of cooperation or deception. The father, in Dr Banks’ view, feigned helplessness and lack of understanding of the English legal process as an explanation; a claim that Dr Banks considered was ‘likely to have little foundation’.
  2. The father explained to Dr Banks that, although he had agreed with the court order requiring him not to have any contact with his wife in order to facilitate the rehabilitation of the two boys to his care, he took the view that the court had overstepped its boundaries in imposing this restriction, had not given him any explanation as to the reasons for it and that it was, therefore, an unfair request. He claimed that he had effectively agreed to the conditions under duress.
  3. Dr Banks found the father to be ‘particularly psychologically defended using high levels of denial and minimisation to protect him from feelings of guilt, shame and blame’, with regard to his involvement in the difficulties in the court process and the removal of the children. Importantly, Dr Banks advised ‘this process will ultimately inhibit the father’s capacity for change where he will find it difficult to manage future behaviour when not recognising that outcomes are a consequence of past behaviour.’ Further, Dr Banks considered that the father had difficulties in mentalising and emotionally appreciating his children’s experience and, when specifically asked about the impact on the children, the father gave more detail about the emotional impact on himself.
  4. In view of the father’s reliance upon an interpreter, Dr Banks decided that it was not appropriate to undertake psychometric testing of him.
  5. With respect to the mother, Dr Banks’ initial appraisal was:
  6. Dr Banks considered that the mother’s adult attachment style was motivated by fear (of the authorities) leading to strategies of withdrawal and escape, and ways of dealing with the perceived threat which would become incoherent, self defeating and non-productive.
  7. The mother is seen as by far the more dominant of the two parents within their relationship.
  8. During his sessions with the mother, Dr Banks saw evidence of false beliefs, and an underlying theme of anger towards professionals. There was also ‘a high degree of fragmentation and false innocence and blame with distorted episodes’ which indicated that, essentially, the mother has difficulty in integrating both emotional and cognitive information. The mother identified difficulties in her relationship with the father, and displayed anger with respect to his behaviour, as she alleges it, of making contact with other women. Whilst the mother accepted that she had ‘done wrong’, Dr Banks, despite pressing on more than one occasion, was unable to illicit more that minimal examples of this from her – for example accepting that she had made a false allegation against the father with regard to the original injury to R in May 2017.
  9. During the exercise of psychometric testing, the mother’s scores indicated a high level on the ‘Obsessive Compulsive Subscale’. Dr Banks advised that such individuals tend to be fairly rigid and follow their own personal guidelines for conduct in an inflexible manner, even when this may conflict with social norms. The mother also demonstrated elevated scores on the paranoia scale and the hyper-vigilance subscale. She demonstrated a markedly elevated score on the ‘dominance scale’. Such a score, Dr Banks advises, identifies an individual who is generally domineering and tends to have little tolerance for those who disagree with their plans and desires.
  10. In a further test designed to assess socially desirable responding, the mother’s score on the ‘self-deceptive enhancement scale’ was very much above average indicating, in Dr Banks’ view, that she shows ‘a form of self-enhancement best described as rigid overconfidence akin to narcissism’.
  11. More generally Dr Banks considered that the father exhibited passive aggressive characteristics of a type that would typically result in attempts to sabotage agreements or disrupt agreements that have been reached, while attempting to appear cooperative. It is particularly difficult to resolve the source of conflict within such individuals, due to it being denied.
  12. The mother, too, is seen by Dr Banks as having passive aggressive personality characteristics. He considers that ‘The mother is now faced with a situation where even with her back against the wall, she does not show good reflective qualities to consider alternative strategies to those that have clearly failed her.’ She has a poor reflective capacity, which may give some insight to explain why the children’s needs were not prioritised.
  13. Dr Banks considers that ‘individuals who show passive aggressive behaviour are highly manipulative and tend to avoid responsibility for their behaviour.’ He further (and importantly) concluded:
  14. Dr Banks found that both parents take the view that Keehan J ‘got it wrong’ and that the court process was flawed. Both parents ‘struggled to agree any point in the judgment’.
  15. Despite his appraisal, Dr Banks concluded:

The parents would benefit from a couples therapy approach which would need to take place with two family therapists who could work with the parents to help achieve an alteration in the parents’ perspectives of their behaviours. The approach here will need to be direct and challenging and certainly not a non-directive type approach, as this would only lead to both parents going round in circles and having their existing views confirmed.”
Dr Banks advised that a minimum of twenty sessions would be needed, but that this was within the children’s timescales in his opinion.

The Court had to consider whether to make the Care and Placement Orders sought by the Local Authority or whether to extend the proceedings to commence the ‘head-banging therapy’ recommended by Dr Banks. The President analysed the issue here

  1. Of particular note is Dr Banks opinion (set out at paragraph 35 above) that it would be very difficult to establish a cooperative agreement with the parents that would hold up, due to the high level of the parents’ defensive avoidance, their denial and their huge degree of psychological defendedness. This conclusion is entirely supported by the analysis offered by Dr Banks with respect to each parent. Both the psychological labels that he attributes to the various elements of what he has identified from the parents’ behaviour, and the, at times, striking evidence that he reports of their responses to him during his sessions, justify the application of terms such as ‘high level’ and ‘huge degree’. Yet, despite the coherence of his analysis and his negative conclusion as to the ability of the parents to enter into a sustainable working agreement, Dr Banks’ recommendation is that this couple could respond sufficiently to a single course of therapy to such a degree that his opinion as to their ability to abide by an agreement could change sufficiently for the authorities to trust them to work cooperatively in the future. With due respect to Dr Banks, that recommendation seems to be wholly at odds with, and not supported by, the body of his report.
  2. No matter how directive and robust a therapist may be, the task in hand, namely bringing about sufficient change to establish a situation where the parents can each be trusted not only to enter into, but to stick with, a working agreement with the social workers for the protection of their children, is a very complex and substantial one. Not only must the therapist seek to challenge and turn around a long-established element of the mother’s character, which is maintained by a high level of avoidant behaviour and denial, he or she must also address the difficulties that exist in the couple’s relationship and enhance the father’s ability to understand and resolve his own difficulties. In addition the therapist will be working with a couple for whom lies and deceit are second nature, and who are each in almost total denial that they have any problems that need to be resolved.
  3. Dr Banks advises, and I readily accept, that it is not necessary for parents to exhibit a significant degree of understanding or acceptance of the nature of their difficulties before embarking on therapy. But, where the issue is should the course that would otherwise be in the children’s interests be put on hold for months, there surely needs to be some basis for the court understanding and accepting that there is at least the potential for sufficient change to take place. Here, the description of the nature of the parents’ difficulties, the degree to which those difficulties have been seen to be entrenched over years and the absence of any indication from the parents that they even recognise that they have those difficulties, make it difficult to accept that a single course of couple therapy could provide a commensurate remedy.
  4. After reading his report and then hearing his oral evidence, I was therefore left in the position of understanding and accepting his analysis of the problems, but far less able to understand and accept that his recommendation for therapy offered a sustainable potential solution.

The President went on to look at the written evidence and the parents oral evidence,

  1. the court has the parents’ respective responses to the detailed findings of fact made by Keehan J. These can only be described as being wholly minimal and self-serving. In the mother’s case, once those elements which are indisputable (for example ‘the police came to the hospital’ and ‘by chance a nursing professional in America identified the mother and alerted the authorities’) are removed, the only statement which is a genuine acceptance of an adverse finding is that the parents colluded with each other to conceal the birth of Q and her presence in England. In the father’s case, the only matters of genuine acceptance are that he lied about events in May 2017 and that he never had any intention of being a sole carer for the two boys. It is of further note that the mother’s admission that the parents colluded together to conceal the birth of Q, is wholly at odds with the father’s assertion that he did not even know of the pregnancy until he was introduced to his baby daughter at the age of four months.
  2. Despite Keehan J’s express and detailed findings, and despite stating that they accept that the judge made those findings, the parents’ evidence at this hearing demonstrated that, far from accepting that the findings have been made and must form the basis of planning for the children’s future, they still deny many matters of significance and seek to establish alternative conclusions. This is particularly so in relation to the bruise on R’s eyebrow, the trip to Stranraer, the calling of police in December 2019 and the attempt to flee with Q via Gatwick Airport, but the reality is that (as the parsimonious response to the findings of fact demonstrates) this is their approach to any of the adverse findings save for the minimal matters that have now been admitted.

strikingly given the stage that the court process has reached, the identification of her problems by Dr Banks, and the proposal for therapy to address those problems, during her evidence in chief the mother volunteered a detailed account of church-based therapy. Her account was, even on its own basis, internally lacking in credibility. It was roundly denied by her husband, who had only attended a few early sessions, but had not found them helpful and had withdrawn. He considered that there were still significant difficulties in the couples relationship. Against his evidence, the mother’s account of a course of couple counselling for well over a year, totalling over 100 sessions, and which had resolved all the difficulties in their relationship can only be a blatant lie.

(If you are going to lie, at least get your stories straight)

The President reached this conclusion

  1. Once the parents’ evidence is brought into consideration, the prospect of therapy being able to achieve and maintain a sufficient change in each parent are, in my view, further reduced to a significant degree. The findings that I have now made as to there being nothing other than minimal change in the parents’ acceptance of past harmful behaviour, and their apparently undiminished ability to produce and develop new lies to this court, do not provide any basis at all for identifying that there is any prospect of change on the part of either of them (paragraphs 95 to 98).
  2. Neither parent accepts Dr Banks’ assessment of their individual problems; the mother simply does not see herself as Dr Banks sees her. Rather than receipt of the expert’s report providing a mirror that each parent can look into and gain some understanding of what now needs to be addressed, this potentially dynamic moment has come and gone without any hint of impact in terms of enhanced self-awareness, and with the parents’ dishonest behaviour presenting as firmly embedded as ever. One is driven to the conclusion that, when the parents say that they are willing to undergo therapy and will do whatever is necessary to establish that they can care for their children, they are simply saying what they perceive is necessary and doing no more than paying lip-service towards accepting that there is a need for therapy. It may be that they are not deliberately doing so. It may be that they are incapable of seeing the truth of what Keehan J has said about their past behaviour and what Dr Banks says about why they behaved as they did. Be that as it may, the result is that they have not demonstrated to this court that they genuinely understand why they need therapy.
  3. Taking this appraisal of the parents’ evidence and presentation in the court process into account alongside my concern that the prospect of success in therapy does not seem sustainable even on Dr Banks’ evidence because of the scale of the problems to be addressed, it is impossible to escape the conclusion that there is no realistic prospect of therapy producing sufficient enduring change of the scale and degree necessary to justify consideration of placement of the children in their care on the basis that it would then be sufficiently safe to do so.
  4. Given my conclusion, which is that, despite Dr Banks recommendation, the evidence does not establish that the parents’ problems might be sufficiently resolved through therapy, it is not strictly relevant to consider the question of an adjournment of the case for four months to monitor how the parents might engage with the therapist and establish a therapeutic relationship. Even if a positive report were received after four months, my conclusion that the degree of change that is needed to establish safe parenting is beyond the scope of the proposed therapy would still stand. Indeed to take four months even to reach that stage indicates just how much work would then need to be done in the months that followed, thereby stretching the time during which the children were, yet again, waiting for a permanent placement yet further.
  5. On the issue of capacity, therefore, my sad conclusion is that the current lack of capacity to provide sufficiently safe, stable and nurturing care for their children cannot be reversed by a single course of therapy, starting as it would, from a baseline where the parents simply do not accept that there is any problem that needs to be addressed

The Court went on to make Care and Placement Orders.

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ICE CREAM – I thought part 2, but it turns out part 1

Posted on May 20, 2021 by suesspiciousminds

Three years ago, in the pre-Covid times which now seem like a lifetime ago and that if you watched TV footage from 2018 everyone would be wearing kipper ties and dressed in maroon and brown, Mostyn J published a judgment about an application to discharge a Care Order.

It was one of those judgments that made the press

Boy, 8, was taken off mum by social workers who said ‘she had not taken him for ice cream’ – Mirror Online

And the case itself

GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) (bailii.org)

(which does indeed feature ice-cream’, but of course it was not the reason for the removal – but it was one of the only concrete examples of the mother failing to meet the child’s emotional needs that the social worker was able to give in evidence, and Mostyn J was perfectly right to be scathing about the weakness of that evidence)

Ms Tommason-James was asked to identify her best example of the mother failing to meet L’s emotional needs. Her response was that until prompted by the local authority mother had not spent sufficient one-to-one time with L and had failed on one occasion to take him out for an ice cream. This struck me as utterly insubstantial criticism, and indeed it must have struck the legal representatives of both the local authority and the guardian in the same way because this was not put to the mother in cross-examination by either of them. A further criticism in this vein was that the mother had failed to arrange for L’s hair to be cut in the way that he liked. Again, this is obviously inconsequential, and again it was not put to the mother in cross-examination. A yet further criticism was that on one occasion the mother allowed L into the house of Mr S, the father of A and K. The local authority’s case is that Mr S represents a risk to L, although this has not prevented them approving the placement of A and K with him. On the occasion in question the mother had gone up to Mr S’s house to get some money for A, and L was allowed to visit the downstairs lavatory while the mother was talking to Mr S outside the front door. How this is supposed to represent a failure by the mother to meet the physical or moral needs of L is completely beyond me. It does seem to suggest that objectivity and disinterested fairness is not being applied to the mother.

And I was SURE that I’d written about it, but I can’t find it. It had all the ingredients of something I would have written about – Mostyn J judgments are always worth a write-up, the ice-cream thing, the media coverage, a scathing attack on attachment theory. But I can’t find the piece, and I have to assume that I just didn’t do one.

The significance of the case, legally was this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests

 

and the judgment was also highly critical of attachment theory and expert evidence about attachment theory

First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.
Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.
For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.
In her executive summary Cathy Webley says:
“On balance, I feel that the risks to L of a return home at this stage are too high and that he should have the opportunity to consolidate the evident progress he is making in his settled foster placement. My conclusion may have been different if L’s foster placement was unsuitable or was in danger of disrupting. However that is not the case. L is happy, settled on making secure attachments in the way that his care plan was designed to achieve. L is more resilient than he was but he remains more vulnerable than most children. I would be concerned about disrupting him again and moving him into an uncertain future with his mother.”
This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:

“L has been told he will be staying long-term with [the foster parents] and has made an emotional investment in his new family. He would undoubtedly find separation for his foster family, whom he has learnt to love and trust, distressing, even if he appeared outwardly happy.”
If L has been told that he will in effect be staying permanently with his foster parents then that would be a major dereliction from the positive duty imposed on the local authority to seek to take measures to reunify this family. I cannot see how this factor can be relied on first and foremost by the independent social worker.

I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.
In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.

It sometimes feels as though the Court of Appeal have a To-Do list which includes ‘keep an eye out for any case that comes before us where we can overturn an old Mostyn J judgment that we disagree with’ – of course they don’t. I’m being snarky – but I’ve seen quite a few cases now where the Court of Appeal allow an appeal from a different Judge and use as their decision-making framework an explicit overruling of a legal principle set out in a Mostyn J case, and it is pretty rare to see that happen with other Judges.

However, here the Court of Appeal were hearing an appeal about an application to discharge a Care Order where the Judge at first instance had been taken to the Mostyn J decision and applied it.

TT (Children) [2021] EWCA Civ 742 (20 May 2021) (bailii.org)

The Court of Appeal say in the early part of the judgment, when explaining why the appeal had been given permission

The mother sought permission to appeal, which I granted in part on 25 March 2021. In doing so, I noted that it was doubtful that any of the grounds of appeal had a real prospect of success, but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council

The Court of Appeal with reference to Carmarthenshire said this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests. For the reasons given later in this judgment, these statements are not correct and should not be followed.

The reasons later begin at para 39

  1. I lastly turn to the decision in GM v Carmarthenshire. In that case a 5 year old child was taken into care in mid-2015 and a care order was made in February 2016. In August 2016, the child’s mother applied to discharge the care order. In November 2017, Mostyn J adjourned the application and directed that there should be a six month contact regime of a kind that he described as conventional in a private law dispute. At the final hearing in May 2018, by which time the child was 8¾ and had been with the foster carers for 2½ years, he granted the mother’s application. He described the local authority’s objections to the child returning to his family as inconsequential and trivial and he replaced the care order with a supervision order.
  2. The decision is clearly one that could have been taken on the basis of established principles, but Mostyn J instead approached s. 39 of the Act as if it was untrodden ground. At paragraphs 3 to 9 of his judgment, he developed a series of propositions based on In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, Re B, and the Strasbourg authorities. In the course of this, he observed that:
  3. In their submissions in the present case, Mr Taylor and Mr Lord agree that this analysis is incorrect. In brief, they note that it does not refer to previous authority on the subject of the discharge of care orders. They submit that it is misleading and unhelpful to suggest that “something close to” a threshold applies to decisions about the discharge of care orders. The construct of a ‘near-threshold’ is imprecise, does not fit into any statutory framework, and distracts from a full and balanced welfare evaluation and proportionality check. Care orders exist in a wide range of circumstances and the approach to applications to discharge must be broad and flexible. The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right. The overall analysis is not sustained by any of the six decisions cited above, indeed it conflicts with them.
  4. With respect to Mostyn J, I agree with these submissions. I would only repeat that the reference in paragraph 198 of Re B to a “very strict” test arises, as Baroness Hale stated, in cases involving the “severing of the relationship between parent and child”. In the great majority of cases where there is no plan for adoption, there will not be a severance of this kind, and references to a “very strict” test or to “nothing else will do” are not applicable to an application for a care order, still less on an application to discharge such a care order.
  5. I would also add that the irrelevance of thresholds to decisions under s. 39 is seen in ss. (5), which allows for the making of a supervision order without proof of threshold.

In relation to the comments made by Mostyn J about attachment theory begin at paragraph 36.

  1. An independent social worker instructed with the permission of the court, had provided a report that referred to the child’s attachments. Mostyn J was critical of this evidence (paragraphs 16-21), and he described attachment theory as “only a theory” and “a statement of the obvious”. At paragraph 17 he stated his understanding that attachment theory is not the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct and that it therefore does not qualify to be admitted as expert evidence, and he concluded:
  2. In making these observations, Mostyn J did not refer to other authority about attachment theory. In fact, the subject of attachment and status quo was considered in Re M’P-P (Children) [2015] EWCA Civ 584 at paragraphs 47-51. In that case, where a birth family was seeking to recover children from prospective adopters, McFarlane LJ stated:
  3. McFarlane LJ returned to the topic in Re W (A Child) [2016] EWCA 793, a case in which a child had been with foster carers who were interested in adopting:
  4. The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand.

The test for determining discharge of care order applications is therefore reset to Re S 1995 – has the parent shown that the order for discharge is better for the child than continuing with the status quo.

“159. I am now going to turn to the relevant law. The long-established test I have to apply is within section 1 of the Children Act 1989, the paramountcy of the children’s welfare. This was confirmed, for example, in the early case of Re S [1995] 2 FLR 639, Waite LJ at 634 making it clear that a parent does not need to establish that the threshold criteria no longer exists. That decision was followed in Re C [2009] EWCA Civ 955 and it has not been doubted since.

  1. There is a burden on the applicant to show that the order – that is discharge – is better than not making the order. That follows from section 1(5) of the Children Act. It might be said that that is an evidential burden on the applicant. In the case of Re MD and TD [1994] FL 489 [sic – the citation is from Re S] it was said that “the previous findings of harm would be of marginal reference and historical interest only and the risk to be considered would normally focus on recent harm and appraisal of current risk”. Of course, every case is different and the extent to which a previous finding is historical in the sense of no longer relevant or less relevant will vary case by case.

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Care Orders at home, and abandoning search for missing children

Posted on May 12, 2021 by suesspiciousminds

This is a decision by MacDonald J

Manchester City Council v D (Application for Permission Withdraw Proceedings after Abduction) [2021] EWHC 1191 (Fam) (11 May 2021) (bailii.org)

It was a case where three children who were at home with the parents under Interim Care Orders were removed to Pakistan by their parents, and all efforts to find them have been unsuccessful.

The Local Authority applied for leave to withdraw the care proceedings, and to have the children instead made wards of Court.

The Court noted in passing (but helpfully for my purposes, because it sets out the current judicial thinking on Care Orders at home) that the Guardian in the case had recommended that the children be made the subjects of Care Orders under a care plan of them remaining with the parents.

  1. The Local Authority undertook a comprehensive programme of assessment of the parents. The father was assessed to continue to pose a significant risk to the children in the circumstances I have outlined in the foregoing paragraphs. The assessment of the mother however, was positive. In the circumstances, the local authority’s care plan approaching the conclusion of the care proceedings was for the three children to remain in their mother’s care under a court order, the nature of which was to be determined at the final hearing, the local authority contending that the order should be a supervision order under s.31(1)(b) of the Children Act 1989. Whilst the Children’s Guardian agreed that the children should remain in the care of the mother, she contended that this should be under the auspices of a final care order rather than a supervision order.
  2. I pause to note that the practice of placing children at home under final care orders has recently been the subject of some scrutiny by the Public Law Working Group chaired by Keehan J. That scrutiny has had added significance with respect to cases decided on the Northern Circuit in circumstances where it is said that this Circuit has a higher than average number cases in which the placement of children at home under a care order is the final welfare outcome endorsed by the court. In this context, I note the following important passage from the best practice guidance contained at Appendix F of the final report of the Public Law Working Group published with the imprimatur of the President of the Family Division at the beginning of March 2021:

“Care order on a care plan of the child remaining at home
[33] There may be good reason at the inception of care proceedings for a child to remain in the care of her parents/carers/family members and subject to an ICO pending the completion of assessments.
[34] The making of a care order on the basis of a plan for the child to remain in the care of her parents/carers is a different matter. There should be exceptional reasons for a court to make a care order on the basis of such a plan.
[35] If the making of a care order is intended to be used a vehicle for the provision of support and services, that is wrong. A means/route should be devised to provide these necessary support and services without the need to make a care order. Consideration should be given to the making of a supervision order, which may be an appropriate order to support the reunification of the family.
[36] The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.
[37] It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.”

I hadn’t seen this guidance, so it is helpful to have it set out

Message from the President of the Family Division: publication of the President’s Public Law Working Group report | Courts and Tribunals Judiciary

I’ve practiced family law all over the country, and the North West circuit is the only place where I’ve heard of Care Orders with the children at home being anything other than a 1 in every 5 or 6 years phenomenon. Everywhere else, its incredibly rare. I’m not sure why it sprang up as being a solution in the North West and really nowhere else. It leaves families with the threat of the child being removed at any time, and leaves Local Authorities with responsibility for the child and having the repeated issue of ‘is THIS the thing that tips the balance that means that the child is now removed’? (I think it is much better in these situations for it to be a Judge to decide whether or not the child should be placed in foster care)

Onto the broader issue of the case,

  1. in my judgment the chances of securing the return of the children to this jurisdiction in a timescale commensurate with the statutory timescale for proceedings of this nature as set out in s.32(1)(a)(ii) of the Children Act 1989 is low. Whilst the court is able to extend the statutory timescale for care proceedings where necessary to enable the court to resolve the proceedings justly pursuant s.32(5) of the Act, in deciding whether to do so the court is required pursuant to s.32(6) of the Act to take account of any the impact revision to the timetable both on the child and on the duration and conduct of the proceedings. In the current circumstances, any extension would be an extension of unknown duration, with little by way of reliable evidence before the court to suggest a realistic end date. Further, and within this context, whilst the children remain the subject of care proceedings, and the subject of interim care orders pursuant to s.38 of the Children Act 1989, the local authority has statutory duties with respect to them as looked after children pursuant to s.22(1) of the Children Act 1989 and the Care Planning, Placement and Review (England) Regulations 2010. Whilst the children remain outside the jurisdiction the local authority is precluded from discharging effectively those statutory obligations.
  2. It of course remains possible, particularly in light of the developments in the use of remote hearings that have taken place in response to the global COVID-19 pandemic, to deal with the determination of these proceedings by way of remote hearing, at which hearing the parents could attend by video link from Pakistan and Italy respectively. However, whilst superficially attractive, in light of the position adopted by the parents with respect to co-operation with these proceedings I consider it unlikely that the parents would engage with a final hearing. Further, and more fundamentally, in light of the position set out above regarding the current paucity of directly effective reciprocal legal instruments between this jurisdiction and Pakistan, the court must also look to the situation that would pertain at the conclusion of such a remote final hearing. If that hearing resulted, in light of the developments in this case since 3 November 2020 evidencing the mother’s inability to safeguard the children from the risks the father has been assessed to present, in the court considering that the mother could not safely care for the children, the court would be left in the position of making orders that it could not readily enforce. Were the decision to be that the children should remain in the care of their mother, the court would not be able to rely on any plan for supporting the mother and addressing deficits in her capacity to protect the children being implemented. In addition, and importantly, continuing the care proceedings notwithstanding that the children are now in Pakistan, with the attendant focus on the return of the children to this jurisdiction, is likely in my judgment to leave children in state of considerable stress and uncertainty.

In the foregoing circumstances, and notwithstanding the answer that I am satisfied is returned by the applicable principles absent account being taken on the abduction of the children from this jurisdiction, the reality of the situation that now pertains in this case leads me back to the observation by Ward LJ in London Borough of Southwark v B that there is no advantage to any child in being maintained as the subject of proceedings that have become ineffective in result by keeping alive proceedings that have no current efficacy and have lost the momentum derived from the support of the local authority that initiated them. To refuse the application made by the local authority, and supported by the Children’s Guardian, would be to retain public law proceedings before the court during which the local authority could not discharge its statutory duty to the children and following which the court could not enforce any order it considered should be made to safeguard and promote the children’s best interests. Within this context, it is much more difficult to see the relevance of the potential result of continuing the proceedings to the future care plans for the children. Further, the court would be compelling the local authority to engage in proceedings that it no longer seeks to pursue. In these circumstances, it is also far less clear that the time the investigation would take and the likely cost to public funds could be justified.

  1. However, whilst I accept Ms Lennox’s submission that it would be inappropriate to make an order warding each of the children until they reach their respective ages of majority, it is my intention that the children shall remain wards of this court for a further period. The evidence before the court is that the GMP continue to investigate this case as a criminal offence of child abduction and are still working with Interpol and the authorities in Pakistan in that regard. Whilst satisfied that the timescales of that investigation are, on the evidence before the court, out with those of the care proceedings, I am satisfied that whilst these criminal investigations continue it is in each of the children’s best interests that they remain wards of this court, in order that the court can intervene quickly with respect to their welfare should the criminal investigation be brought to a successful conclusion. In light of the timescales contemplated by GMP I am satisfied that in the first instance the wardship proceedings should be listed for a further review in six months’ time. At that point, further consideration can be given by the court to whether those proceedings should continue or should also be brought to a conclusion, having regard to any further progress made by GMP in the criminal investigation in concert with Interpol and the authorities and the police in Pakistan.
  2. In conclusion, I grant the local authority permission to withdraw the care proceedings in respect of the children. The children will however, continue to be wards of this court. I will list the wardship proceedings for review in six months’ time, at which review the court will give further consideration to the progress of the criminal investigation by GMP, in concert with Interpol, into the parents abduction of the children from this jurisdiction and determine whether it is appropriate for the children to remain wards of court at that juncture.
  3. Finally, I wish to make abundantly clear that my decision in this case has been reached on its own very particular facts. My decision should in no way be taken to represent acquiescence by the court in the face of the actions taken by the parents in this case, as an acceptance of those actions or to suggests that parents involved in care proceedings can avoid those proceedings by removing their child from the jurisdiction of the court.
  4. To the contrary, parents who abduct children as a means of avoiding local authority involvement with those children or during the course of subsequent care proceedings can expect the court to bring to bear the full weight of the law in seeking the return of those children to this jurisdiction, and to continue in that effort until all legal avenues have been exhausted. A case in point is the decision of this court in Re K (Wardship: Without Notice Return Order) [2017] 2 FLR 901, in which this court ordered the return of the children to this jurisdiction some five years after they had been abducted by their mother as a means of avoiding local authority involvement with the children’s welfare. The courts of this jurisdiction will pursue all reasonable measures to ensure that subject children abducted by their parents or relatives during the course of care proceedings are returned to this jurisdiction.
  5. Within that context, I direct that a copy of this judgment be sent to the Greater Manchester Police and I give permission to the Greater Manchester Police to disclose the judgment to Interpol and to the authorities in Pakistan with whom the Greater Manchester Police are co-operating with respect to their ongoing criminal investigation into the abduction of the children.
  6. That is my judgment.

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Special Guardianship Order AND a Care Order

Posted on May 5, 2021 by suesspiciousminds

This is going to be a bit niche. If you want to read a blog post with wider applicability, may I point you towards

Wellbeing fatigue / Pink Tape instead

This case is about a curious wrinkle in the Children Act 1989, where the making of a Special Guardianship Order automatically discharges a Care Order but not vice versa. That always led to the theoretical possibility that a Court could make an SGO, and then moments later make a Care Order. And the curious issue of just who has overriding Parental Responsibility in that situation.

Theoretical that is, until now.

F & G, Re (Discharge of Special Guardianship Order) [2021] EWCA Civ 622 (30 April 2021) (bailii.org)

  1. This is an appeal against a judge’s decision refusing to discharge a special guardianship order (“SGO”). The children who are the subject of the SGO are twin girls, F and G, now aged ten. Their special guardian is their former step-father, K. The appellant is the girls’ mother.
  2. The unusual – indeed almost unique – feature of this case is that the girls are subject not only to the SGO but also to a care order. The principal issues arising on this appeal are whether as a matter of law the two orders can coexist and, if they can, whether in the circumstances of this case the judge was wrong to allow the SGO to continue.

I note in passing the weird situation that allows for a step-father to have a Special Guardianship Order, which is perfectly permissable in the Act, but feels like it maybe shouldn’t be.

6. At a final hearing before HH Judge Sharpe on 9 April 2020, the care proceedings concluded with the making of an SGO in favour of K and a care order in favour of the local authority. No judgment was delivered setting out the reasons for this outcome. The order recorded that all parties agreed that the two orders should be made. It further recorded that the local authority had not yet filed final care plans, directed the authority to file the plans by 20 April, and recorded that the final orders would be made “administratively” assuming no party objected on receipt of the plan. A final plan was duly filed on 16 April and no party raised any objection at that stage.

Anyway, SGO was made on 9th April 2020. By the end of May 2020, the LA were giving notice that they intended to apply to remove the twins. The step-father applied for an injunction to prevent this. By 16th June, the twins were in foster care.

So step-father was the Special Guardian whilst actively caring for the twins for just over 2 months. They had been living with him as sole carer for about a year before that.

At a final hearing in November 2020, the mother made an application to discharge the Special Guardianship Order, which continued to give K, the step-father, parental responsibility for the twins and a greater parental responsibility than she had as their mother.

10. According to a chronology prepared for this appeal, on 27 November, three days before the “final” hearing, the mother filed a notice of application for discharge of the SGO. No copy of that application was included in any of the bundles filed in connection with this appeal. At that stage, the mother had not been granted leave to make the application. In the skeleton argument prepared for the hearing on 30 November, the mother’s counsel invited the court to grant permission for an application for discharge of the SGO to be made “in the face of the court”. It seems, however, that this application was either not pursued or not granted. There is no reference in the ultimate order to the mother being granted leave to apply and in paragraph 16 of the judgment the judge recorded that he was “content to regard the matter as being one which fell within s.14D(2), Children Act 1989 whereby the court of its own motion may vary or discharge existing SGOs even in the absence of an application by any party so entitled”.

At the hearing on 30 November, the mother was the only party seeking discharge of the SGO. By that stage, the local authority and the guardian had changed their positions and concluded that there was a positive benefit to the order continuing alongside the care order. Having heard legal argument, Judge Sharpe indicated that he would not discharge the SGO. The hearing was adjourned for the delivery of a judgment which was distributed in draft before a hearing on 22 December and then ultimately handed down in its final form on 12 February 2021 setting out the judge’s reasons for refusing to discharge the SGO, together with a supplemental judgment in which he gave reasons for attaching a condition to the SGO under s.11(7) of the Children Act and for refusing the mother permission to appeal. On this latter point, the judge stated that he was following convention in allowing this Court to decide whether to grant permission, and that, but for that convention, he would have been minded to grant permission “in order that the issues raised in this case could be considered at an authoritative level”,

The order made following the hearing did not fully reflect the judge’s decision. It referred to the father’s application to discharge the order (which had not been pursued) but made no reference to the mother’s application to discharge the SGO. It recorded that:

The mother immediately filed notice of appeal against the judge’s decision refusing to discharge the SGO. On 18 February 2021, I granted permission to appeal. On 25 February, the mother filed an application to amend the grounds of appeal to include an appeal against the condition attached to the SGO.

The appeal hearing took place on 5 March 2021. The mother’s appeal was opposed by the father, the local authority and the children’s guardian. At the outset of the hearing, we granted the mother permission to amend the grounds of appeal. At the conclusion of the hearing, judgment was reserved.

I’m already intrigued as to why the Local Authority would oppose the mother’s application. I stopped reading the judgment at this point and spent ten minutes trying to think of a reason why they would. The closest I got was ‘K is an important figure for the children and removing the SGO removes his PR and thus it should continue so that he can continue to play a part in their lives’ (which seems like it could be achieved by a recital that the LA would continue to involve him, or the Court granting him parental responsibility as a step-parent under section 4A of the Children Act 1989), but I couldn’t come up with anything else.

That does seem to be the nub of it (with counsel for mother also suggesting that the Court could use inherent jurisdiction to declare that K be treated as a ‘significant person’ for the children by the Local Authority).

K’s argument also included this point :-

37…. Although he is not at present the children’s carer, it cannot be said with any certainty that he will not resume care at some point in the future. In the event that he were to resume care under the SGO at some point in the future, he would be entitled to support at a level which would not be available if he was not a special guardian. The importance to the children of allowing K to continue to be their “father” and be recognised as a parent now and in the future was central to the decision.

The three questions for the appeal were these :-

  1. The mother advanced three grounds of appeal, recrafted in her skeleton argument in these terms:

(1) SGOs and care orders cannot coexist in law: Parliament never intended that they could or would coexist. The two are plainly and simply incompatible. Any formulation and/or crafting and/or interpretation of the legislative framework to reach a conclusion that they can coexist is wrong.
(2) In the alternative, if the orders are lawfully permitted to coexist, on the facts of this case the judge was wrong to allow the SGOs to continue.
(3) The imposition of the singular specified condition, on the facts of this case, was wrong both in principle and, in the alternative, in its content.

The Court of Appeal decided that

1.Yes, they could co-exist (provided they are the correct way round – SGO first, Care Order second can co-exist, Care Order first then SGO second can’t, because the SGO in statute automatically discharges the Care Order)

2. In the facts of this case, whilst the Court of Appeal felt that the Judge had considered things carefully, there were solutions to the difficulties that were not put before the trial Judge that had been explored at the appeal, and that a Care Order with a carefully worded care plan with how K was to be included and consulted and kept involved would have been the better solution.

So point 3 didn’t arise to be settled.

But the Court of Appeal also settle the ‘if there’s an SGO AND a Care Order, whose overriding PR overrides, if any?’ question that has been on nobody’s lips – I mean, it’s something I asked idly about 8 years ago in a post, but it was hardly a burning question.

Not like the burning question that I was presented with yesterday, which was “In the Blondie song, Hanging on the Telephone, is Debbie Harry’s character a stalker? And secondly, if she is, is that somehow okay if she looks like Debbie Harry?”

Blondie – Hanging On The Telephone – YouTube

To which the answers in my view are – yes, she kind of is, and that’s quite hard but yes it sort of is but no it can’t be because of the wider implications that throws up so no, no it isn’t okay. No .

Anyway, the Court of Appeal answer:-

Under s.14C(1)(b), a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility, but only “subject to any other order in force with respect to the child” under the Act, including a care order. Under s.33(3)(b)(i), the local authority has the power to determine the extent to which a parent or special guardian may exercise parental responsibility, provided it is satisfied it is necessary to do so to safeguard or promote the child’s welfare. The consequence is that, once a care order is made, a special guardian’s power to exercise exclusive parental responsibility is overridden by the local authority’s power to determine the extent to which any person holding parental responsibility may exercise it

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