Author Archives: suesspiciousminds

Not a vacuum but a low pressure vessel

Posted on March 20, 2019 by suesspiciousminds

 

The case of

            CS v SBH & Ors [2019] EWHC 634 (Fam) (18 March 2019)    

https://www.bailii.org/ew/cases/EWHC/Fam/2019/634.html

is the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point.  It also involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.

 

In case that’s prompting you to close the browser and eat some biscuits instead – it is an important decision for any solicitor representing a child, or Guardian, or a parent’s lawyer giving advice as to whether the child could be separately represented.  It also involves two children’s solicitors duking it out over which of them would represent the child, which is not something I’ve ever seen before. Read on.

 

At essence, it was an appeal from a private law order that the child should live with the father, the child expressing that she wanted to live with the mother.  The child lodged the appeal, but one of the solicitors for the child was actively opposing the appeal.  (Yes, that dull pain around your temples is normal at this point)

The child had two solicitors.

One instructed by the Guardian, who considered that the child did not have capacity to instruct a solicitor (and hence could not bring this appeal properly, as the Guardian had not given instructions to lodge such an appeal)

One instructed by the child directly (and who was acting pro bono (for free) , because she was concerned that the original proposal was that the mother was funding the child’s legal fees) who considered that the child DID have capacity to give instructions, wanted to appeal the order and so the appeal should be heard.

So the first thing for the Court to work out was which of these two solicitors was actually representing the child. If the child had capacity, it would be Ms Hopkin.  If the child lacked capacity, it would be Ms Coyle.

 

But even beyond that, the Court had to at great length decide whether an appeal was a continuation of existing proceedings or fresh proceedings.

 

  1. After all those preliminaries we were able to get onto the question of the preliminary issue. I had thought that some oral evidence from Ms Hopkin and Ms Coyle might be desired but in the event Ms Hopkin was appearing as the advocate and in any event no party wished to put questions to either Ms Coyle or Ms Hopkin and so the matter proceeded on submissions. As arguments developed this appeared to boil down to two particular issues:
  1. i) Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin’s opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative.

ii) Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children’s Guardian. This involved consideration of both the law and the evidence.

  1. As I shall return to later this apparently clear delineation between the role of Ms Hopkin and the role of the court turns out not to be so following a deeper dive into the authorities.

 

(I’m pleased that it was ‘apparently clear’ to Williams J, because this caused me such pain in my cortex that I had to contemplate an MRI scan before moving on.  But joy, it turns out NOT to be so ‘clear’)

 

In a nutshell, if the case is new proceedings, then the child instructs a solicitor Ms Hopkins, and if Ms Hopkins thinks the child can give her instructions well then what Ms Hopkins says effectively goes on capacity. But if it is a continuation of proceedings, the Court has to consider whether the child has sufficient understanding to instruct solicitors.

So is an appeal new proceedings, or a further stage in existing proceedings?

 

  1. The following matters suggest that an appeal is fresh proceedings:
  2. i) The appeal is made in the High Court not in the family court and is allocated a specific number. It is made by an Appellants Notice not a C2 ‘Application in existing proceedings.’

ii) Legal Aid treats proceedings with a different case number as ‘new proceedings’ and an appeal after a final order is not covered by the same certificate.

iii) Cost are dealt with separately.

  1. The following matters suggest that an appeal is part of a continuum of proceedings:
  1. i) An application for permission to appeal may be made in either the lower court or the appeal court. This suggests the appeal process is linked as between the lower court and the appeal court.

ii) The appeal court has all the powers of the lower court (FPR 30.11)

iii) The appeal court’s powers directly affect the order made by the first instance court, including the power to vary any order or judgment, refer any application or issue for determination by the lower court, order a new hearing (FPR30.11 (2) and stay the order of the first instance court. These all suggests a direct jurisdictional connection.

iv) The appeal court’s function is identified at FPR 30.12 is reviewing the decision of the lower court unless it considers it to be in the interests of justice to hold a rehearing.

v) The appeal court powers include substituting its own decision or exercising its own discretion fresh rather than remitting the matter to the first instance court; Fallon v Fallon [2010] 1 FLR 910 CA. The court may also admit fresh evidence and may hear oral evidence.

vi) The respondents to the appeal are the other parties to the proceedings in the lower court (see FPR 30.1 (3)) and the appellant’s notice must be served on any children’s Guardian.

vii) Where a child is a party to the first instance proceedings they are automatically a party to the appeal proceedings the rules do not provide for the court to reconsider their party status or whether they will be represented by a Guardian and who will be appointed as the solicitor.

 

  1. Notwithstanding the points which point towards an appeal being separate proceedings I conclude that the factors pointing in favour of an appeal being a continuation of proceedings are far more compelling. In particular the seamless continuation of party status and the powers of the appeal court all point to an appeal being another stage of proceedings; albeit different in nature. I don’t consider that the use of an appellant’s notice, rather than a C2, shed much light on the issue. Applications in existing proceedings can also be made by the use of other forms under the part 18 procedure. Seems to me the appellant’s notice and the giving of a separate case number are administrative matters rather than affecting the substance of the proceedings. Nor do I consider the rules relating to the availability of legal aid shed much light on whether the proceedings are separate or part of a continuum. The rules applied by the Legal Aid Agency are a matter for that agency.
  2. For all of the reasons identified above I conclude that an appeal is a continuation of the first instance proceedings. It is another step or stage in those proceedings and thus the provisions of FPR 16.6 (5) apply.
  3. That being so it is for me to decide whether the child has sufficient understanding to conduct the appeal proceedings without a Guardian.

 

 

(The Court also took the view that as a result of Re CT the Court ultimately had discretion anyway, so all of that was rather academic, but at least we all now know that an appeal is a continuation of existing proceedings, not new proceedings)

In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’

 

 

Moving on then, as the Court had to decide whether the child had sufficient understanding to instruct a solicitor, what did they take into account?

 

 

 

  1. Having regard to the jurisprudence I consider that Lady Justice Black’s summary in paragraph 36 of her judgment in Re W (highlighted above) draws together much if not all of the earlier observations on the issue. What is clear is that there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. Thus the earlier authorities need to be approached with a degree of caution in terms of the level at which they set the ‘bar’ of understanding. The autonomy issue sounds both in pure ‘understanding’ terms and in welfare terms.
  1. i) In assessing understanding the court is likely to attribute more weight to the child’s views of the issues and the reasons they give for wishing to be involved amongst others. The expression of a wish for an objectively ‘unwise’ (or unsound) outcome might now not undermine the evaluation of sufficient understanding in the way it might have in 1993. It is perhaps also likely to hold the child to a somewhat lower expectation of understanding of the litigation process than emerges from Booth J’s judgment cited in Re N (above) which appeared to contemplate an ability to negotiate complexities of litigation which many adults might struggle with.

ii) In so far as the welfare of the child is a primary consideration in the decision-making process (Art 3 UNCRC and Mabon suggest it is) the welfare of the child sounds both in favour of their involvement (recognising the value they may add to the process and their rights as a person significantly affected by the decision) and against (where involvement may expose them to harmful emotional consequences).

  1. Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including
  1. i) The level of intelligence of the child

ii) The emotional maturity of the child.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the ‘parrotting’ end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

  1. Ideally the assessment would be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view

 

 

In this case, the Court had two solicitors, both experienced at representing children, and both with competing views as to whether the child had capacity to instruct them.

Discussion

  1. Each case must be approached on its own facts. The stage at which I am assessing the issue of sufficiency of understanding comes relatively late in these proceedings where an experienced family court circuit judge has already determined the substantive issue and made findings which are relevant to my evaluation of the sufficiency of the child’s understanding.
  2. The views of Ms Hopkin on the one side and Ms Coyle on the other are diametrically opposed. There is however an immediate and obvious difference between them. That is not the age and experience of the solicitor conducting the evaluation but rather the extent to which the evaluation is an informed evaluation. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.
  3. Turning thus to some of the factors which I need to weigh in the balance in making my own evaluation of whether this child is of sufficient understanding to conduct the appeal without a children’s Guardian my conclusions are set out below and draw upon all that I have set out in this judgment as well as what I have read and heard.
  1. i) The level of intelligence of the child: she has the intelligence of or slightly above her chronological age.

ii) The emotional maturity of the child: she lacks emotional maturity, this being evidence by an inability in particular to hold a balanced view of her father or an understanding of her position.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state: the extent of her enmeshment with her mother and the emotional harm that she had suffered from that is likely to diminish her ability to understand the true nature of the issues.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role: I accept that the child has felt her voice has not been listened to or heard but that actually does not reflect the reality given that she has had a Guardian and solicitor both in the original proceedings and recently. Whilst inevitably her reasons for wanting to have a solicitor and appeal will be mixed, arising at least in part from the fact that her solicitor and Guardian did not achieve the outcome she desired I consider that it is also likely that her position has been influenced by her mother and maternal family either directly or indirectly. Although every child is of course different the fact that this child has not been in direct contact with Mr Burrows or Ms Hopkin pushing for information, seeking answers or otherwise proactively pressing her case indicates to me that her desire to have her own solicitor in Ms Hopkin and to pursue the appeal is not particularly strong. Her acceptance of the possible withdrawal of proceedings in summer 2018 is further evidence of this.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position: the child’s lack of a full appreciation of the reasons for living with her father in part at least arises from the fact that the issue has not been addressed in therapy although I note that the Guardian understood that the child had knowledge of the reasons but had not processed it. The child’s wish to live with her mother was accepted by the Guardian and HHJ Meston QC as a genuine one. Inevitably it is in part a product of influence (whether direct or indirect and see HHJ Pearl’s conclusion) but all our views are in part a product of influence of others views. The child’s wishes in this case are closer to the authentic end of the spectrum than the parroting end although they probably fall closer to the middle.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation: Ms Coyle’s analysis but also the contents of some of the child’s expressed views whether in letters or to the Guardian do not indicate much of an understanding of the court process, the functions of a solicitor, the role and function of a judge or the consequences of having a solicitor acting directly. They emerge as very simplistic and unrealistic. Although neither Ms Hopkin or Ms Coyle specifically addressed the question of the child’s understanding of the appeal process, the nature of an appeal is in many ways harder to understand than the first instance process given it is a review of the judge’s decision rather than a rehearing of the application.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm: both the Guardian and HHJ Meston QC considered that the child would accept an outcome that was contrary to her expressed wishes. It is clear from the Guardian’s report that continued litigation is contrary to the child’s welfare. In particular the burden that it is considered that she carries to promote the mother’s position is harmful. Further involvement in litigation in this appeal or otherwise will likely be contrary to her welfare interests. Exposure to sensitive information to a child of this age and with this history will be harmful. Although her actual involvement in this appeal might be limited the process of challenging the judgment would inevitably involve detailed discussions with the child about the evidence. On the other hand, she has expressed a desire to have Ms Hopkin act for her and to appeal. This has endured since HHJ Meston QC’s adverse judgment. However it is not pressed proactively and the Guardian and Ms Coyle did not detect any real desire to appeal in any event. Thus preventing the child from engaging directly in this litigation with the effect that it would very probably bring the appeal to a juddering halt is not likely in my view to be perceived by the child as a significant insult to her autonomy as an individual.

  1. Giving all due weight to the child’s personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children’s Guardian. That is not to say that Ms Hopkin’s initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.

 

 

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Should a Local Authority serve notice of proceedings on a father suspected of abusing the mother?

Posted on March 18, 2019 by suesspiciousminds

 

If that title sounds familiar, it is because this was a huge hot-button topic not very long ago, involving a case in which a woman (now named in the public domain as Sammy Woodhouse) complained that a Local Authority was in effect inviting her abuser – who had groomed and abused her as a minor – to have contact with her baby.

I rather stayed out of that story, because there wasn’t a reported judgment to make sure that the newspapers were reporting the case accurately, but if you want the background, the Transparency Project has a good piece on it here

 

http://www.transparencyproject.org.uk/when-should-i-apply-for-permission-not-to-notify-a-father-about-a-court-case-concerning-his-child/

 

Lawyers at the time were saying that the Local Authority, according to the Family Procedure Rules 2010 have to serve notice of the proceedings on the father. That’s not inviting him to have contact, or wanting him to be involved in the child’s life, but following the procedure that they have to follow. However, a lot of lawyers also said that in a case of this kind, where the pregnancy was a result of child sexual exploitation, it would have been better to put the issue before the Court and have the Court hear arguments as to why father should NOT be served and make the decision.

This case is not binding authority.  The boundaries about what’s precedent, what’s information as to how a particular Judge dealt with a particular issue in a particular case, what’s obiter and what’s mostly a speech masquerading as a judgment has gotten very blurry in the lifetime of this blog. But this is not a binding authority.

However, it uses wording that makes you think it might be.

P (Notice of care proceedings to father without parental responsibility) [2019] EWFC 13 (11 March 2019)    

http://www.bailii.org/ew/cases/EWFC/HCJ/2019/13.html

 

1.  In 2018 a local authority obtained a final care order in respect of a teenage girl, Z. In its threshold document the local authority alleged that Z was ‘at high risk of sexual harm as she has previously been groomed and sexually exploited’. Z’s parents accepted that the threshold criteria set by s.31(2) of the Children Act 1989 were met. The local authority sought a final care order based on a care plan of long-term foster care. Z’s parents accepted that that plan was both proportionate and in Z’s best welfare interests. A final care order was made.

  1. At the time of those proceedings Z was pregnant. Z’s baby, P, was born in December 2018. The local authority promptly issued care proceedings and obtained an interim care order. The local authority’s interim care plan was that upon discharge from hospital P should be placed with Z in her foster placement. That plan was implemented.
  2. This case relates to issues of child sexual exploitation. P’s father is believed to be T. T is more than 10 years older than Z. He is believed to be part of a group of predatory men who have groomed and sexually exploited a number of teenage girls of whom Z is one. He has been prosecuted for offences relating to his sexual relationship with Z and is presently serving a custodial sentence.
  3. It is not known what information, if any, T has concerning Z’s pregnancy and P’s birth. He has never had contact with P, either direct or indirect. It is believed that he is not aware of these care proceedings. He does not have parental responsibility for P.
  4. The local authority wishes to be relieved of its responsibility to comply with the provisions of Family Procedure Rules 2010 (FPR) Practice Direction (PD)12 §3.1 which provides that, ‘every person whom the applicant believes to be a parent without parental responsibility for the child’ is ‘entitled to receive a copy of Form C6A (Notice of Proceedings/Hearings/Directions Appointment to Non-Parties’.

 

So quite similar to the Sammy Woodhouse case, although here (probably mindful of the awful press that Rotherham got in that case) the Local Authority asked the Court to decide on whether father should be told about the proceedings.

His Honour Judge Bellamy (sitting as a Deputy High Court Judge) heard the case.

He placed reliance on a previous judgment he had given (again, not binding authority) Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34, [2017] 4 WLR 110 (‘ Re CD ’).

 

And said that as the case had not been overturned on appeal, nor was there any later judgment saying that the decision in Re CD was wrong in law, he felt able to rely on it

 

My decision was not appealed. So far as I am aware it has not been the subject of criticism in any subsequent case or any academic criticism. In those circumstances I propose to proceed on the basis that the law is as set out in that case

 

 

And in conclusion

 

23.          Against that background what, then, should be the approach of the local authority and the court to the requirements of FPR 2010 PD12C §3.1 in any case involving child sexual exploitation? In such cases, is there a requirement, or at least an expectation, that the local authority should apply to the court for permission not to serve Form C6A on the person believed to be the birth father? Or, to put that another way, is it open to a local authority unilaterally to take the decision to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation where that person does not have parental responsibility and is believed to be unaware of the care proceedings?

  1. It is for the court to decide whether the requirements of FPR 2010 PD12C §3.1 should be disapplied in any particular case. It can only make that decision if the local authority brings the matter before the court by issuing an application for the requirements of FPR 2010 PD12C §3.1 to be disapplied.
  2. In my judgment, on a proper reading of the requirements of FPR 2010 PD12C §3.1, it is open to a local authority, without reference to the court, to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation without reference to the court. The court has no power to impose a requirement that in every case relating to a child born as a result of child sexual exploitation a local authority must apply to disapply the requirement to send a copy of Form C6A to a person believed to be the father of the child. Whether there should be such a requirement is an issue for the Family Procedure Rule Committee and not for the court.
  3. However, in my judgment it is open to the court to state clearly that as a matter of good practice there is an expectation that in every care case relating to a child born as a result of child sexual exploitation the relevant local authority should apply to the court for the requirement to send Form C6A to the person believed to be the father of the child to be disapplied. Such an expectation would make it clear that in every such case the decision whether or not Form C6A should be sent to the putative father is a decision of such importance that it should normally be taken by the court and not by the local authority. In my judgment there is such an expectation.

 

So this case is persuasive for a Local Authority who WANTS the Court to decide whether a father in that situation should be told of the proceedings.  The Court accepted that they could not make it a REQUIREMENT that a Local Authority in these circumstances MUST ask the Court to decide before serving notice, but then goes on to say that it is good practice for a Local Authority to do that, and that the decision is of such importance that it SHOULD NORMALLY be made by the Court and not by the Local Authority.

 

(I’m not myself sure that the Judge at first instance as a Deputy High Court Judge has sufficient authority to seek to establish good practice beyond the case in question, but to be honest, I think every Local Authority would be rather glad not to find themselves in the same position as Rotherham did with Sammy Woodhouse, so it ends up being a piece of good practice that mothers  and Local Authorities will agree with.  People will want to follow it, even if it isn’t actually authority)

I’m not sure what happens where there’s no conviction and the child sexual exploitation is an allegation yet to be proven, or what happens at final hearing or afterwards if the Court decides the child is to be placed for adoption, but we’ll cross that bridge when we come to it.

 

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Judgment critical of delay from expert

Posted on March 12, 2019 by suesspiciousminds

 

It’s a very sad indictment that if told that there’s a family law judgment about a medical expert who was egregiously late in filing a report and not very communicative in what was happening, a large number of family lawyers would be able to guess who it was without reading the judgment.

 

I think it is probably the problem that you see very often on a small scale, but here writ extraordinarily large.  Expert A does a report, people think it is great. Next time an expert is needed, they say “go to Expert A”, when colleagues mention a case they say “oh, you should get Expert A”,   Expert A’s workload increases exponentially, because the more work they do the more work they get and more recommendations were made. Then the volume becomes overwhelming and timescales slip. Generally, there’s then a rebalancing and the expert decides to say “no, I can’t take anything for four months, I’m snowed under”.  It becomes an even greater problem when the expert is really good AND practising in a field where there’s high demand for an expert of that discipline, and limited supply. I imagine it just becomes harder and harder to say no, and the volume just becomes utterly unmanageable.

 

            X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 (11 March 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B9.html

 

The judgment names the expert, but I’ve chosen to anonymise it.

 

For many years, Dr __________  has regularly been instructed as a medical expert witness in cases proceeding in the Family Court. She has had a distinguished career. As a consultant paediatrician, she is held in high regard. It is particularly sad, therefore, that at the end of her career she should face the kind of criticisms from the court that I am about to set out in this judgment. Put shortly, the problem is one of delay and failing to honour commitments and promises made to the parties and, through them, to the Family Court. It is appropriate that I should consider separately Dr ________’s failings with respect to X and Y.

 

40.          So it is that six months after Dr ______________ was instructed to prepare a report in respect of X and four months after she was asked to prepare a report in respect of Y, neither report has been written. Neither X nor Y has been seen by Dr _________________. It very much appears to be the case that Dr __________________ has thus far spent little, if any, time reading the medical records that have been made available to her.

  1. The parties have come to the conclusion that in terms of both time and cost it would be appropriate for Dr __________’s instructions to be terminated and an alternative expert instructed. I agree.
  2. That leaves an outstanding issue concerning Dr ______________’s fees in respect of any work she can prove she has undertaken since she was instructed. Without hearing argument on the point I am unable to resolve that issue. However, in light of the history set out above it is at this stage difficult to see how any fee could be justified.

 

49.          The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.

  1. However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations makes clear, it is also an obligation that is placed on medical expert witnesses.
  2. There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.
  3. A draft of this judgment was provided to Dr ___________ in advance of today’s hearing. She was invited to attend court today to make representations before the judgment is handed down. Dr ______________ did attend.  She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties’ solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the Family Court.
  4. I am deeply concerned about the way Dr ______________ has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.

 

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Can you make an Interim Care Order that lasts beyond the child’s 17th birthday?

Posted on March 7, 2019 by suesspiciousminds

 

Long term readers of the blog will be familiar with Betteridge’s Law – questions posed to which the answer is “no”   – as much beloved by sub-editors at The Daily Express et al   (Can Pomegranate Juice cure Cancer? Did the Ghost of Diana speak to Meghan? etc)

The heading of this blog post is a Betteridge’s Law question – the answer is no, but in this case it is helpful to have the answer.

 

[To the chagrin of our former President, I’m going to say “The High Court” when I mean “The Family Division of the Court, sitting in the High Court” because the latter is too much of a mouthful. ]

The question has been bubbling around since the 2014 Children and Families Act  – that Act introduced the change in law that Interim Care Orders (which used to last for 8 weeks for the first order, and 28 days for each subsequent order, meaning lots of admin in long-running cases) could now last until the conclusion of the case or further order.

So in pre 2014, even if the Court made an interim care order at just before the child’s 17th birthday, the ICO would run out at most 2 months later. Whereas now, technically, it could run right up to the child’s 18th birthday.

It is settled law that the Court can’t  MAKE a CARE ORDER for someone who is over the age of 17 (or, if they are married, over the age of 16) but it hasn’t been clear whether that also prohibited an Interim Care Order.  [The Care Order can LAST until their 18th birthday, but you can’t MAKE one on a child who has passed the age of 17]

Section 31 (3)  Children Act 1989  No care or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen in the case of a child who is married).

 

So the theoretical argument went

 

I can’t make a CARE ORDER on a child who is 17, but if I can make an INTERIM CARE ORDER then that can last until the end of proceedings, which will suffice.

 

If I had a pound for every time someone had asked me if that was okay, I would not have zero pounds.

I’ve always said “No, because section 31 (11) says that for the purposes of the Children Act, any reference to a Care Order ALSO means an interim care order, unless the reference specifically excludes that”

And if they persist

 

“Well, the point of an interim order, is a holding position until the Court can decide whether to make the full order.  The interim care order is made because the Court has adjourned the application for a full order under s38 (1) (a). And if there’s no jurisdiction post 17 to make the final order, how can that be a legitimate use of an interim order?”

 

(Okay, sometimes I just say ‘no, trust me, you don’t want me to explain , it is just no‘)

 

s31 (11)In this Act—

  • “a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

  • “a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

 

s38 “(1) Where –

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

(b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.

 

The High Court, in Re Q (A Child: Interim Care Order) 2019

http://www.bailii.org/ew/cases/EWHC/Fam/2019/512.html

 

Also say no, but they didn’t reference s31 (11)  (They put it in to their citation of the statute, but don’t use it in their reasons)

They go on the second limb of my answer

 

  1. I endorse Mr Barnes’ submissions that Parliament chose in passing the Act to demarcate seventeen or sixteen (if married) as the age after which a child could not be placed in the care or supervision of a local authority without a full disposal of the case having been achieved. That was a recognition of the growing autonomy of the individual child. Likewise, the ability of a final care order to persist until the age of eighteen is a recognition of the obligations placed on a local authority, once parenting has been established to fall below the reasonable standard expected, to ensure a child is not left without appropriate care before becoming an adult. Those matters support my analysis of section 38(4) as amended.
  3. All the above brings me to the conclusion that no interim care or supervision order will endure beyond the date of a child’s seventeenth birthday or the date of a child’s marriage if aged sixteen. To be clear, interim care and supervision orders made for a period during which the child turns either seventeen or gets married (if aged sixteen) are impermissible. If, prior to the 2014 amendments, interim public law orders were being made which extended beyond the child’s seventeenth birthday, they should not have been given (a) the absence of an explicit power to continue such orders beyond a child’s seventeenth birthday and (b) the age thresholds set out in the Act. The dicta of McFarlane LJ in Re W [see above] support this proposition.
  5. If my interpretation of section 38(4) is correct, where does that leave the existing section 31 proceedings? Mr Woodward-Carlton submitted that an interim care order which continued beyond a child’s seventeenth birthday led nowhere. It was not a precursor to a final section 31 order as there was no jurisdiction to make such orders after a child turned seventeen. Mr Barnes strongly supported those submissions, suggesting that it would be absurd if an interpretation were given to section 38 which permitted the imposition of compulsory care arrangements on an adjournment of proceedings without purpose. Such an approach would conflict with section 1(2) of the Act and the court’s overriding objective. Contrariwise, Mr Devereux QC submitted that the continuation of the existing section 31 proceedings may have a purpose in that the court might be able to make findings of fact which might inform either the making of other orders or future local authority decision-making.
  7. I observe that the jurisdiction to make an interim care or supervision order only arises on an adjournment or in the event of a direction pursuant to section 37 of the Act. It is thus not available as a freestanding remedy. Lord Nicholls in paragraph 89 of Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10 noted that the source of the court’s power to make an interim care order arises on an adjournment of section 31 proceedings and in paragraph 90 he stated as follows:
  1. “90. From a reading of section 38 as a whole it is abundantly clear that the purpose of an interim care order, so far as presently material, is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle. The corollary to this principle is that an interim care order is not intended to be used as a means by which the court may continue to exercise a supervisory role over the local authority in cases where it is in the best interests of the child that a care order should be made.”

Those words support the proposition that interim public law orders are not freestanding remedies but take their life from proceedings in which the court has the jurisdiction to make substantive public law orders. Where those remedies are not available, the continuation of the proceedings appears, at first glance, illogical

 

HOWEVER, the High Court did consider that there would be jurisdiction to continue the care proceedings themselves, if issued before the child’s 17th birthday.  (I’m not sure I agree, but where the High Courtand I disagree, hot newsflash the High Court win that argument)

The thinking, I believe, is where the proceedings might be used to determine contentious findings of fact, and of course, the Court in care proceedings also have the power to make no order, or a section 8 order as to where a child would live and how much time they would spend with a parent.

 

(I think the rationale for saying on an application for an order the Court can no longer make, the proceedings can stay open once the Court can no longer make those orders is thinner than Christian Bale in The Machinest, but the High Court win this one). Obviously if there are younger children in the same set of proceedings, the need for them to remain live for the 17 year old falls away a little, but the advantage to keeping them open is that the 17 year old has a voice as to what happens to their siblings.

 

  1. In my view, there is a distinction between the making of interim public law orders on an adjournment where a child has turned seventeen and the continuation of the section 31 proceedings themselves. I remind myself that no court seised of public law proceedings is required to make either interim or final public law orders. It may decide that a section 8 order or indeed no order is an appropriate disposal at either an interim or final stage. Whilst no interim or final public law order would, on my analysis of section 38(4), be available in respect of a seventeen year old child (or sixteen if married), I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings. For example, it might not be where a child of seventeen wishes to be accommodated against the wishes of those with parental responsibility. Additionally, although final public law orders would not be available to the court, the court might conclude the proceedings before the child is eighteen by making other orders available to it such as a section 8 order (assuming exceptional circumstances applied) or by making orders under the inherent jurisdiction. Whilst the latter could not operate to require a child to be placed in either the care or supervision of a local authority or to require a child to be accommodated by a local authority, other orders under the inherent jurisdiction may be entirely suitable in the circumstances of the individual case. I conclude that, when the jurisdiction to make interim and final public law orders is no longer available, careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child’s welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application. There will, however, be some cases where a useful forensic and welfare-driven purpose might be served by the continuation of public law proceedings albeit without the structure provided by interim public law orders.

 

I don’t think the LA could legitimately ISSUE care proceedings on a child who was now 17, but if the proceedings are already in force, this paragraph does create an argument for keeping them open until the Court is in a position to make final Children Act 1989 orders, notwithstanding that the Court can’t make the orders that were actually applied for.

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In the pool or not in the pool?

Posted on February 28, 2019 by suesspiciousminds

 

This reported case is a Circuit Judge decision, so not binding on any other Judges, but it is interesting and raises a potentially important issue.

C (Interim threshold not crossed) [2019] EWFC B5 (15 February 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B5.html

 

A child C, was 6 1/2 and had lived, for all but four months of his life, with his maternal grandparents, who held a Child Arrangements Order.  C’s cousin, D, was admitted to hospital with fractures to both legs, she being a non-mobile baby.  A police investigation was taking place in relation to D’s injuries. As part of that, the police informed the Local Authority that for a period during the time when those suspicious fractures had occurred, D had been spending time with the grandparents.

 

In the vernacular, the grandparents  (whilst by no means the main suspects for those injuries) were in the ‘pool of perpetrators’   – or were they?

  1. On 8 th October 2018, [the] police apparently advised the local authority that C should be removed from the care of his maternal grandmother and placed with his aunt R, while further and urgent investigations were undertaken.  The grandparents reluctantly gave their section 20 consent to this, feeling they had no option.  The local authority applied for emergency protection orders for D and her brother E on 11 th October, and subsequently care proceedings were issued.  Those two children are subject to interim care orders and are currently in foster care.  HHJ Owens has listed a fact-find hearing to determine the cause of D’s injuries, due to take place in the week before and after Easter, in April 2019.  

 

The LA issued care proceedings for C  (I don’t know that I would have done that, prior to a decision being made about D’s injuries, but the LA were obviously worried that C’s carers may have been responsible for such serious injuries to a baby.  It rather depends on whether that’s a theoretical possibility that they might have been responsible based just on timing, or some evidence that pointed more strongly towards them)

The Court had originally made an EPO and later ICO for C.

 

This was the judgment from a later contested ICO hearing.  It was complicated further because the LA were proposing that C be placed with his father (who was not involved in D’s life at all and thus absolutely not under any suspicion about D’s injuries)

 

#spoiler alert – the title of the case rather gives away the judicial decision, but read on to find out why.

 

An argument deployed at Court was that the Court, faced with a father and grandparents, could apply a private law filter to the case and decide which placement was better for the child in the interim while D’s injuries were being assessed (in effect, a ‘beauty parade’ exercise)

 

The Court, rightly, did not agree. The legal position had to be that the child be with grandparents unless the LA could satisfy the Court that there were reasonable grounds to believe he was likely to suffer significant harm in the grandparents care and further, that the risk of harm was such that C’s safety required separation from the grandparents.

 

 

  1. I have found this application difficult to determine because it was initially presented to me as a simple exercise of my discretion in respect of weighing up the pros and cons of two competing placement options, but, for the reasons I have given, I do not regard that as the correct approach as a matter of law.  I am grateful to all counsel who have shown flexibility in dealing with the issues that were troubling me, but I have received no written submissions about the question of interim threshold, and no evidence or submissions in respect of the application of the welfare checklist.  Because there has in my judgment been inadequate formulation of the nature of the risk that each of the grandparents is said to present to C, there has been inadequate consideration as to how those risks might be contained so as to enable C to continue to be cared for by his grandparents.  The case law is clear that the key to any application for an interim care order in which it is proposed that a child is separated from his primary care givers is proportionality.  I have had no evidence or submissions to enable me to consider whether the course of action proposed by the local authority is necessary or proportionate in safeguarding C’s welfare.

 

Threshold

 

  1. The threshold document is very short on factual detail and does not explain why it is said that C, who it is accepted has never suffered any harm in his grandparents’ care, is at risk of significant harm from either of them. 

 

  1. Paragraphs one to nine set out the history of D’s admission to hospital and the local authority’s concerns about the care she and her brother E received in their mother’s care. 

 

  1. Paragraphs 10 to 16 concern the grandparents, although there is not a single specific allegation against the paternal grandfather. 

 

  1. At paragraph 10 it is said that E has spent a considerable amount of time in the care of his maternal grandparents.  It is then pleaded:

 

The maternal grandparents have, therefore, had, at the very least, very regular contact and extensive contact with their grandchildren and have failed to protect them from suffering significant harm.

 

  1. There can be no doubt that D has suffered significant harm.  However, this paragraph does not plead when either of the grandparents had regular or extensive contact with D, or in what way they should have acted in order to prevent her serious and significant injuries.  The threshold document does not identify which, if any, of the injuries allegedly sustained by E amount to significant harm.  It is not pleaded in what respect either of the grandparents should have prevented his injuries being sustained.

 

  1. At paragraph 11(a) the local authority pleads that it considers that C would be at immediate risk of significant harm if he returned to the care of his grandparents at this time, because:

 

(i)                  D’s treating clinicians consider that her injuries were inflicted non-accidentally;

(ii)                None of the adults who had care of her or were in contact with her at the time have been able to provide any explanation for the injuries;

(iii)              The paternal grandparents and extended family, are reluctant to acknowledge the possibility of the injuries being inflicted non-accidentally … and show a lack of acceptance around the severity of D’s injuries and the need for local authority involvement with the children.

 

  1. In my judgment, this paragraph fails the President’s test in Re A .  It does not set out why the A + B + C of D’s injuries and the grandparents’ reluctance to contemplate their being inflicted non-accidentally amounts to the X + Y + Z of an immediate risk of significant harm to C if he was in their care.  Within the evidence, I have not seen a specific reference to either of the grandparents suggesting that there should not have been local authority involvement with D.  There is a reference in the first social work statement to the maternal grandmother expressing her reluctance for C to be living with his aunt stating that ‘she had done nothing wrong’ , but if this is what is relied upon, it is not explained why this would mean that C is at risk of significant harm.

 

  1. It is not specifically pleaded whether either of the grandparents was caring for D or in contact with her at the time her injuries were sustained, or whether they were specifically asked to give an explanation or not.  If they were not there when the injuries were sustained I am not sure why they should be criticised for not having an explanation for their cause.

 

  1. If proved, showing a lack of acceptance around the severity of D’s injuries and the need for local authority involvement, is of course a valid concern in general, but in my judgment not on its own sufficient to stand as an explanation that C is at ‘immediate risk of significant harm’ from his grandparents.

 

  1. Paragraph 11(b) includes the statement that ‘one of the adults within the potential pool of perpetrators is the maternal grandmother’.

 

  1. It was repeated to me a number of times in submissions that the grandmother is ‘ in the pool of perpetrators’ .  She is not.  A person is ‘in the pool’ only after a finding of fact has been made to that effect.  I understand that an allegation has been made against her within D and E’s proceedings, but findings have not yet been made.  The threshold is for the local authority to prove.  If the grandmother is alleged to be in the pool of perpetrators as part of these proceedings, it is not because she accidentally found herself there, or someone else put her there, it must be because the local authority positively asserts that she had the opportunity and the motive to cause these very serious injuries, and that she was there at the time the injuries thought to have been sustained.  In support of its assertion, and in order for the Court to come to the conclusion that there are reasonable grounds to believe that C is at risk of suffering significant harm from his grandmother, the local authority must spell this out in its threshold document and provide evidence in support. 

 

 

(*On first reading, I thought that HHJ Vincent was saying a person is only ‘in the pool of perpetrators’ if a finding of fact about the injury has been made, but he is saying that actually a finding of fact has to be made that ‘X and Y and  Z are the people who could have caused the injuries to C, if the Court later goes on to find that C was injured deliberately’  – that doesn’t usually arise, because the issue of whether someone is ‘in the pool’ is not itself contentious.  But of course here, and in any case where a child is potentially being placed with family members whom the LA assert may be ‘in the pool of perpetrators’ – the issue really should be whether the LA satisfy the Court that this person is reasonably likely to be  ‘in the pool’ and they are not just placed ‘in the pool’ on the LA’s say so.  The remarks about ‘motive’ are interesting, because there’s barely ever evidence as to motive in physical harm to children.  But of course, it is relevant for the Court to consider a 6 year period of problem-free care of C, the limited time the grandparents would have spent with C and lack of evidence as to say  – substance misuse, anger management, violence, or being overwhelmed or frustrated, because those are the usual causes of physical abuse – it is very rare to see actual evidence of sadistic intent)

  1. I have not found any other evidence within these proceedings to suggest that the maternal grandmother had care of D in the week or so before her admission to hospital.

 

  1. Nonetheless, SW still asserts in her conclusion that ‘MGM is currently in the pool of perpetrators for causing injuries to D and/or failing to protect her’.

 

  1. A perpetrator does not fail to protect, they perpetrate.  The pleaded allegation is that MGM is in the pool of perpetrators. 

 

  1. I am unaware of what is pleaded against MGM in the proceedings concerning D and E, and I accept there may be specific allegations and evidence that puts her in the frame more clearly.  However, I am concerned with C, and the pleaded threshold document in respect of him.  The threshold document does not explain upon what facts it relies to suggest that the grandmother could reasonably be believed to be in the pool of perpetrators, and scrutiny of the local authority evidence in this case does not assist. 

 

  1. At paragraph 12 it is pleaded that D’s injuries are so severe, ‘with no explanation as to causation and no clarity, at present, around the possible perpetrator, that the local authority does not consider that it can be safe for C to return to his grandmother’s care’. Again, this allegation does not explain why it is that the severity of D’s injuries and the fact of the perpetrator remaining unidentified pose an immediate risk of harm to C from his grandmother. 

 

This next paragraph,  it took me a while to work out who “Q” was – it is the mother’s partner.

 

  1. At paragraph 13 it is alleged that the presentation of the maternal grandmother and mother’s presentation at the hearing of the EPO were ‘extremely alarming’.  They were seen to physically and verbally restrain Q by sitting on him and putting their hands over his mouth, while he clenched his fist.  This allegation may well need to be explored further, but whether true or not and whatever the reasons for and the significance of this behaviour is, again, the threshold document does not explain why this means that C is at immediate risk of significant harm from his grandparents. 

 

 

 

In conclusion

 

 

Is interim threshold crossed?

 

  1. I have looked at the threshold allegations carefully. 

 

  1. I have considered all the evidence in the bundle and I have listened carefully to the oral evidence of Y and of the guardian.

 

  1. I am not satisfied that threshold is pleaded with sufficient clarity to set out why it is said that either the maternal grandmother or the maternal grandfather present an immediate risk of significant harm to C.  I have reviewed all the evidence and I am not satisfied that there are reasonable grounds for believing that on the date protective measures were taken, C had suffered or was at risk of suffering significant harm as a consequence of the care given by his grandparents, which or that the care given by them was not the level of care one would reasonably expect a parent to give.

 

  1. I do not accept that asserting repeatedly that the grandmother is in the pool of perpetrators with respect to D’s injuries, and being concerned that there is insufficient information and clarity around the circumstances of D’s injuries is sufficient to form the basis of a threshold allegation against the maternal grandmother. so far as C is concerned.  If the local authority wishes to put forward a positive case in respect of the maternal grandmother then it is required to set out in the threshold document what facts are relied upon and then to provide the evidence in support of its contention.  They have not done so.  The evidence is at best equivocal.  While at an interim stage there is of course no requirement to prove the section 31 final threshold is crossed, there must be evidence to satisfy the Court that there are reasonable grounds to believe the section 31 circumstances exist.

 

  1. There is no single specific allegation against the maternal grandfather in the threshold document.

 

  1. All the remaining allegations are generalised and none of them provides an explanation as to why it is said that the care that has been given to C or is likely to be given to him by his grandparents should he return to their care, is below what one would reasonably expect from a parent, and why it would put him at risk of suffering significant harm.  

 

  1. Because I do not find interim threshold to have been crossed, I have no jurisdiction to make an interim care order in respect of C and he should in my judgment be returned to his grandparents’ care.

 

  1. In reaching this conclusion I am not suggesting that the local authority’s concerns about the grandparents are baseless, and I accept that SW and the guardian have genuine concerns about the grandparents’ ability to work co-operatively with them, their insight and acknowledgment of the severity of D’s injuries and the existence and impact of domestic abuse upon their grandchildren.  However, the case law is clear, the local authority must meet a high standard when seeking to justify the continuing separation of C from his grandparents.  I must only consider making an order which interferes  with their right to a family life where the strict statutory grounds are made out.

 

 

 

 

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Assessing family members where parent doesn’t put them forward or objects

Posted on February 14, 2019 by suesspiciousminds

 

In this case, Cobb J was asked to determine an interesting question. In a set of care proceedings, if the Local Authority were aware of extended family members but the parents didn’t put them forward as carers  did the LA have a duty to assess them?  And, given father objected to it, did the LA have the power to talk to the family without his consent?

 

RE H (Care and Adoption : Assessment of wider family) 2019

 

https://www.bailii.org/ew/cases/EWFC/HCJ/2019/10.html

 

Set-up

 

In public law proceedings under Part IV of the Children Act 1989 (‘ CA 1989 ’), social work assessments are commonly undertaken of members of the subject child’s wider family or friends who are proposed as potential carers in the event that the child cannot be safely placed with parents.  The issue which arises in this case is whether a local authority is required, by statute or otherwise, to notify wider family members of the existence of the subject child, and/or assess them, when they are not proposed by parents as potential alternative carers, and where the parents (or either of them) specifically do not wish the wider family to be involved.

 

In the particular case, the child was 5 months old, there had been two previous children removed. The parents were fighting the case and striving to care for the child. There was a long history of parental substance abuse and alcohol abuse and some allegations of domestic violence.

Some of the extended family knew of the child’s existence, some didn’t. None were put forward by the parents as potential carers if the parents were ruled out by the Court.

The LA  Agency Decision Maker (who decides whether the LA can put forward a plan of adoption ) wanted to know whether any of the extended family were an option to care for this child.

The father said that none of his family would be in a position to care for the child, and he did not want them burdened with knowing that there was a child when they could do nothing about it.

 

So the LA wanted to talk to his family to see if any of them could care for the child, father objected to them doing so.

 

There were a few relevant authorities, but most of them dealt with there not being a duty on the LA in a case where the child is relinquished (given up for adoption) to approach family members or rule them out (although if there’s a genuinely realistic option it ought to be explored).  The Court here was being asked to decide whether to extend that principle from agreed adoption to non-consensual adoption cases, or whether different principles applied.

It being a Cobb J judgment, it contains a beautiful and clear analysis of all of the pertinent law and guidance.  It is a short judgment, so I recommend reading it.

 

I’m going to race ahead to the conclusion though.

 

Firstly, and importantly, Cobb J considered the  submissions of all parties that there was an assumption of a duty on a LA to explore family members who were not actively being put forward  (where they did not know about the child) and had some doubts that the case law established such a duty.

 

The submissions of all the parties proceeded upon an assumption that the local authority has a general duty to assess the wider family in these circumstances.  In this regard, I was referred to the decision of Theis J in Royal Borough of Greenwich v Adopters [2018] EWFC 87, in which she said this at [11]:

“ What this case has highlighted is the critical importance of a local authority having effective systems in place from an early stage in care proceedings to ensure that the wider maternal/paternal families are considered as possible placement options for the children . Whilst it is recognised that the parents should put forward any names they want to be considered, that does not absolve the local authority of the enquiries they should independently be making . The continued retort by the local authority that the parents had failed to put anyone forward failed to recognise these are parents who failed to provide the basic care for their children or provide basic co-operation within the care proceedings, this local authority should have undertaken their own enquiries . ” (emphasis by underlining added).

16.               I do not read Theis J’s comments as establishing, or specifically referring to, any free-standing duty to assess wider family who are unaware of the existence of the child.  Indeed, the specific issue arising for determination here caused me to question from where counsel’s assumption about the obligation derives, how far it extends, and what policy or other guidance informs how far it should be applied. 

 

Cobb J looked at a piece of guidance on Initial Viability Assessments, published by the Family Rights Group.  (I’ll declare an interest here, as I had a teeny-weeny part in the drafting of this. Honestly, teeny-weeny)

 

Important guidance published in February 2017 by the Family Rights Group (FRG) (‘ Initial Family & Friends Care Assessment: A Good Practice Guide ’), with endorsement from, among others, the Family Justice Council, Cafcass, Association of Directors of Social services, and the Association of Lawyers for Children, makes this point somewhat more strongly (para.1.1, page 5):

“Where a child cannot remain in the care of their parents, research has consistently found that children placed in kinship care generally do as well, if not better, than children in unrelated foster care, particularly with regard to the stability of the placement. So it is essential that if a child may not be able to live safely with their parents, practitioners identify potential carers from within the child’s network of family and friends and determine whether they will be able to provide safe care to meet the child’s needs until they reach adulthood. ” (emphasis added).

27.               The FRG authors speak further of the importance of enabling wider family members to contribute to decision-making, including deciding when the child cannot remain safely with their parents (para.2.2, page 12):

“Where a child cannot live with their parents, it is the duty of local authorities to work in partnership with parents and relatives to identify whether there is anyone within the child’s network of family and friends who can provide the child with safe and appropriate care . Parents may suggest potential alternative carers and some family members may come forward themselves once they become aware there is a possibility that the child may not be able to remain in the parents’ care. In some cases local authorities may be faced with a large number of potential carers. In these situations, it is helpful to ask the parents and family and kinship network to identify a smaller number of carers who they feel would be most appropriate to be assessed to care for the child.  Family group conferences are not a legal requirement; however, they are recognised as a valuable process for involving the family early so that the family can provide support to enable the child to remain at home or begin the process of identifying alternative permanence options.” (emphasis by underlining added).

 

The conclusion

 

[I am such a sad geek that I was actually on tenterhooks here!]

 

Conclusion

44.               The simple but not unimportant issue raised in this case has given me cause to conduct a reasonably widely-drawn review of statute, guidance and case-law. Drawing the strands of this review together, I have reached the conclusion that I should accede to the application of the local authority.  I propose to give the father an opportunity to inform his parents himself of the existence of H.  He should be supported in this exercise by a social worker or by the Children’s Guardian, should he ask for it.  If he chooses not to notify his family himself, I shall authorise the local authority to do so.

 

First, repeating a point made earlier (see [22]), none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here.  However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare .

 

Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child. 

49.               In exercising that broad discretion, I would suggest that the following be borne in mind.  There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child.  There will be cases where cultural or religious considerations may materially impact on the issue of disclosure.  There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation.  But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent.  Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be “fully explored” (see [28]).  The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that “cogent and compelling” grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound.  This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child’s interests (see Re B (A child) and Re B-S ).

50.               As the DfE and FRG and associated guidance makes clear (see [25]-[27] above), good social work practice requires the early identification of family members who may be able to provide safe care to meet the child’s needs, and/or contribute to the decision making in respect of the child where there are child protection or welfare concerns; the FRG rightly refers to a “duty” on local authorities to work in partnership with parents and relatives.  It was this exercise which Holman J in Z County Council v R [2001] described when, at p.375 ibid., he referred to the fact that “there should normally be wide consultation with, and consideration of, the extended family; and that should only be dispensed with after due and careful consideration ” (my emphasis by underlining).

 

 

The line of ‘relinquished’ baby cases discussed above ([33] et seq .), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth.  In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child’s advantage. 

 

 

 

So not a duty in the ‘statutory’ sense, but unless there are cogent and compelling reasons to not explore the extended family  /  due and careful consideration of the reasons not to explore them, the Court should be very careful about proceeding with a plan of adoption.  That does seem that it is not as simple as the Local Authority saying “well, the parents didn’t put anyone forward”

 

The judgment doesn’t really deal with the power the LA has to share information with the wider family (after all, approaching Auntie Beryl to see if she can care for Little Timmy is inherently telling her that there are reasons why mum and dad aren’t able to) and the GDPR aspects.  In this case, that’s solved by the Court authorising it, and it may be that this is the best solution – to float that there IS an Auntie Beryl who the LA would want to explore and either seek parental consent to do so or have a direction from the Court.

 

 

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Bullish but not bullying? UNDER PRESSURE

Posted on February 7, 2019 by suesspiciousminds

Couldn’t decide between my two titles here, so you get a job lot.

 

I do like a case name that tells you something about the nature of the case, so G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019) told me it was probably going to be worth a read.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

 

It involves an appeal from Sheffield Family Court about the decision to make Interim Care Orders involving two children (both said to be young, and one specified as being four). The children had been removed into Police Protection following an alleged fracas where mother had gone to the father’s house after father had reportedly kept the four year old for longer after his week’s holiday contact than had been agreed. The police had arrested mother and members of her family.

 

There was said to have been some history of domestic abuse between the parents, both making allegations against the other.

 

The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father’s lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M’s poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January

 

The case was listed for an Interim Care Order hearing, against the backdrop of the Police Protection period ending that day and thus a decision needing to be made. The Court called the case in, asked for people’s positions, gave some views, allowed a brief period for instructions to be taken, and the mother did not contest the making of the Interim Care Orders.

 

[In fact, she consented, but it is now permissible to appeal against a consent order – that did not used to be the case, but the law changed following some high profile big money ancillary relief cases – ie  CS v ACS 2015  ]

 

My summary above doesn’t quite capture what happened though, hence the appeal. The appeal was on the basis that the views expressed by the Court went beyond robust case management and into undue pressure and that the mother’s decision not to contest the making of Interim Care Orders was as a result of feeling that she would not get a fair hearing.

 

(I note that mother’s counsel, Mr C,  is said to be 2016 call, which means that he was relatively junior and might also mean that he was in his early twenties, although of course some people join the Bar later in life.  Part of the argument at appeal was whether he was in any way to blame, which he was not. I point those things out merely because they MAY wrongly have given the impression that he could be steam-rolled in a way that a barrister with 20 years call would not have been. )

 

Here is a flavour of it – the judgment gives a pretty thorough blow by blow account if people want to read it

 

JUDGE: Yes. Mr [C], what evidence do you what to hear?

 

Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.

 

JUDGE: Oh, it’s got to be heard today. As you know, the PPO runs out.

 

Mr C: Well —

 

JUDGE: — and if it is heard today I shall certainly make findings that your client will be stuck with.

 

 

And

 

 

JUDGE: I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings – which inevitably I will, because something happened at the house on the 21st of January – she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is – is very risky for her and I – I say that so that no-one’s left in any doubt that if I hear the evidence, which I’m more than willing to do – my list is empty for this afternoon – I shall make findings and she’ll be stuck with them.

 

Mr C: Well, in light of that indication, your Honour, I will probably have a further word.

 

JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn’t have done. but I don’t know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but this is a case where, inevitably, I’m going to make findings, and it doesn’t take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep – that that is significant harm. I don’t think there’s any question about it.

 

Mr C: Well, your Honour, mother’s position would be that it was a – a choice between two difficult decisions that evening —

 

JUDGE: Oh, nonsense.

 

Mr C: — and that she had to take steps to safeguard the welfare of her daughter.

 

JUDGE: No, that’s not the way that you go around it, Mr [C], If that is the preposterous proposition you’re putting to me, it’ll fall on deaf ears.

 

 

And

 

JUDGE: Yes. Mr [C], I’m doing this to try and assist your client, not for any other reason, so it’s up to her.

 

Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a – into a decision on that.

 

JUDGE: Yes. Well, I must say, father’s taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren’t and it would have impacted on my decision, but father’s taken the only standpoint – obviously I’m not making any findings against him because he’s accepted the inevitable.

 

It’s quarter-past now. I’m very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.

 

MR [C]: Yes, your Honour.

 

JUDGE: Right, it’s quarter-past now, I’ll give you – no later than 25 past.

 

I don’t know if mum could possibly have persuaded the Court that her actions in going round to father’s house to get her child back late at night were justified and that in any event, it would not be proportionate to put two children in foster carer as a result of that, but it is an argument that she was strongly pressured into not making.

 

At the appeal, the mother’s case was

 

 

14.Ms Helen Compton’s distilled submission to us is that the mother was deprived of a meaningful opportunity to oppose the making of the orders. The judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

 

 

At the appeal, the Local Authority put the case in this way

 

“Following her discretionary case management powers and with a clear view on the Overriding Objective the learned judge informed the Mother and her Counsel that there was time for the Court to hear the matter as a contested hearing that afternoon and of the possibility of threshold findings being made against her.

 

However firm the learned judge may have been, it did not amount to duress and it was incumbent upon the Mother’s legal representatives to raise these issues with the judge. In the event that judge refused to hear the case at all a judgment should have been requested. In the event that there had been a contested hearing, the Court would have provided a judgment (probably ex tempore) and clarification could and hopefully would have been requested. This matter was agreed and no judgment requested.

 

The learned Judge did state a view on the initial application but this was within her discretion to do. The Learned Judge also provided the Mother with time over lunch to take instructions, further time when Mr C asked for it and stressed that she was willing to hear the case that afternoon. No application was made by the Appellant Mother to seek an adjournment or agree an Interim Order pending listing this matter for a contested interim hearing. This exercising of the Judge’s case management powers did not amount to a breach of the Mother’s Article 6 and 8 Rights.

 

Both parents attended at court represented, the Mother by both Counsel and instructing solicitor. It is perhaps surprising that neither of the Mother’s fully qualified legal team sought to challenge the Judge in the event that they felt the Judge was being intimidating or exerting duress and express their views to that effect at the time.”

17.In her submissions to us, Ms Ford accepts that the transcript shows the judge to have been bullish, but distinguishes this from bullying. She does not accept that the mother was under duress. Professionals are used to judges expressing firm views and they should be able to deal with it, and where necessary stand up to pressure from the bench. There is nothing improper in a judge advising a party of the consequences for them of adverse findings being made at an interim hearing. Ms Ford accepted that one interpretation of the transcript supported the complaints now made; in the end she was not able to suggest any other possible interpretation.

 

The Court of Appeal weren’t very taken with the Guardian’s stance on appeal

 

 

20.Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one

 

 

 

 

 

Conclusions

 

 

 

 

22.The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved. The court is under a duty to deal with cases expeditiously and fairly and to manage them actively in ways that include “helping the parties to settle the whole or part of a case”. See FPR 2010 1.1(1), 1.1(2)(a) and 1.4(2)(g).

 

 

23.Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

 

 

 

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24.Measured against these principles, and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court’s powers.

 

 

25.This was an urgent application, which the judge rightly appreciated had to be decided that day. As she said, she had time available. It was a matter for her, given the practical constraints, as to whether to hear oral evidence: if she had been considering making a short-term holding order I would not have criticised her for not doing so, with any evidence needed to justify a longer-term order being taken on a later date.

 

 

26.However, that is not what happened. The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the Guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel. Before Mr C could even manage to tell the judge that his instructions were to contest the order she told him that “… if it is heard today I shall certainly make findings that your client will be stuck with.” The only conclusion that the mother and her advisers could draw from this and similar statements (“very risky for her”; “a very very precarious position”; “inevitably, I’m going to make findings… – that that is significant harm. I don’t think there’s any question about it.”; “not… without some consequences.”) is that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. The judge then isolated the mother by saying, before learning the position of the Guardian, that “this application is bound to be supported by the Guardian”. When Mr C attempted to put a small part of his client’s factual case, he was met with derision: “Oh, nonsense”; “preposterous proposition you’re putting to me, it’ll fall on deaf ears.” Counsel for the local authority then intervened to say that her social worker couldn’t be questioned about events before she was allocated and that she would question the mother about why she waited until 36 hours after reporting matters to the police before going to the father’s house. Before adjourning at Mr C’s request, the judge further isolated the mother by saying that “the father’s taken the only decision, in my view, that he should take, … obviously I’m not making any findings against him because he’s accepted the inevitable.” Finally, she made an entirely gratuitous statement that “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens.” Whether or not that was an empty threat is beside the point.

 

 

27.This material amply substantiates the appellant’s case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity. This ground of appeal succeeds. It is unnecessary to go on to consider the other grounds.

 

 

28.I also regret that the submissions made by the local authority, either supported or not challenged by the other respondents, show a failure to understand the nature of the overriding objective or the requirements of a fair hearing. The judge’s approach went far beyond “firmness” and cannot possibly be described as “assisting” the mother. Similarly, I would reject the suggestion that the fundamental unfairness of the hearing could have been cured by a more assertive response by the mother’s legal representatives. After what happened in the first part of the hearing, it is difficult to see how a fair hearing could have taken place even if the mother had maintained her opposition. The submissions we have received from the respondents show why the appeal needed to be heard. The consequence will be that the local authority’s application for interim care orders will be heard afresh, and not as an application by the mother for the discharge of existing orders.

 

 

29.A further matter, which arose during submissions, requires comment. The judge’s repeated references to the mother being ‘stuck’ with findings is to my mind one of the causes of concern. However, both Ms Compton and Ms Ford told us that this was a warning that in their experience is often given by judges at interim hearings. Neither sought to argue that there is anything improper about this. I do not share that view and I agree with the observations of Moor J on this point.

 

 

Mr Justice Moor, the second Court of Appeal Judge, reminded us that judicial decisions about matters at interim care order stage are not findings of fact, but decisions that on the section 38 standard that there are reasonable grounds to believe (at that stage) that such and such has occurred. That argument of course cuts both ways – it is a lower standard of proof that the Local Authority have to reach (on the balance of probabilities are there reasonable grounds to believe that this happened versus on the balance of probabilities is it more likely than not that this happened) but on the other hand such judicial decisions and views are not set in stone and should not be used in this way to discourage a parent from testing the evidence.

 

Mr Justice Moor:

31.I agree, and add the following in relation to one aspect of the matter.

 

 

32.During the course of the hearing, we were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute. The implication was that these findings would then stand for all time. Indeed, Ms Ford, on behalf of the Local Authority told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

 

 

33.It is important to remember that there is a fundamental difference between sections 31 and 38 of the Children Act 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-

 

 

 

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

34.Section 38(2) does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, at an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing. Accordingly, we consider that courts, if they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.

 

 

35.If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

 

 

[If I recall correctly, the Courts have confirmed that this is the case even at a finding of fact hearing, that the findings made are effectively a section 38 finding and that it is vital at the conclusion of the case for the Court to actively consider and determine whether to make the same findings to the section 31 standard. Don’t quote me on that though, because I can’t locate the source authority – I just remember having been surprised to read it at the time. Fact findings always FEEL like a section 31 exercise, not an ‘are there reasonable grounds to believe this?’ exercise]

 

The Court of Appeal continued the interim care orders pending the case being reheard by a different Judge.

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The right tool for the job

Posted on February 1, 2019 by suesspiciousminds

 

Immigration law is complex. It involves knowledge of multiple jurisdictions and the political and cultural circumstances of those countries, the statutes, regulations and case law providing interpretations of those statutes and regulations, and it requires confidence and knowledge in advocacy as to what the tribunal you are appearing before is looking for.

I wouldn’t do a contested immigration final hearing. I’d be very out of my depth. Just having skill as a lawyer, and experience of being in Court isn’t enough.

 

The post-script to this family law case, involving an allegation that a child of just seven weeks old was admitted to hospital with serious burns and a mother who alleged that the injury was caused by a friend of hers, Y, who had spilled tea on the child, but Y could not be located to give evidence  (it appears that Y may have been an overstayer, so there’s some immigration angle) , really says all that needs to be said.

 

K & C (Children: Finding of Fact), Re [2018] EWFC B85

https://www.bailii.org/ew/cases/EWFC/OJ/2018/B85.html

 

Families are the building blocks of our society and in Public Law Proceedings, the Courts deal with some of the most vulnerable families. Professionals who work in the Family Justice System are highly skilled specialists who often work on complex cases involving serious intricate forensic issues. Their skill set and professional standards are essential for those who represent the parties in Public Law Proceedings. It is incumbent on those representing the parties facing serious allegations to ensure they have seen, read and understood all the evidence in the case and to ensure that the party who they represent has been able to participate meaningfully in the court process.

I note that in this case, neither the parents nor their Counsel were aware that there were coloured photographs of the injuries that were commented upon in detail in the written report of the jointly instructed expert. Until she was partway through giving oral evidence, the Mother had never seen the transcript of her police interview. Despite being in possession of Y’s photograph, the mother’s solicitors failed to mention this to the local authority or their own private investigator, resulting in much embarrassment when the wrong person was witness summonsed and attended Court. Counsel for the parents have both informed me that they are immigration specialists, consequently the other professionals have had to work very hard to make sure that the hearing could be fair and effective. The mother’s evidence has taken much longer than necessary, which can only have made it more stressful than it needed to be. There is no room in the Family Court for such a lack of care and lackadaisical approach to case preparation.

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Research by ALC on “Fire-eating Courts” (sorry, “Settlement Conferences”)

Posted on February 1, 2019 by suesspiciousminds

 

 

We are still waiting for the Ministry of Justice research on the settlement conference pilot.  I think we’re two years overdue on the publication of the research into the impact of the legal aid cuts, so I shall not hold my breath on that research.

 

The Association of Lawyers for Children, have done their own research, conducted by Dr Julia Brophy. To be fair, I will caveat the research with these three propositions

 

  1. The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
  2. The research is what we call ‘qualitative’ – as in it is asking people for their experiences, rather than the mooted MOJ research which has access to Court statistics and can say how many Settlement Conferences happened, how many achieved an agreed outcome, what the cost savings of not going on to final hearing were and time savings for decisions for children versus the ones that didn’t, and just built in an extra hearing
  3. The sample size of 19 respondents is small (and as the research says, was self-selecting, in that it was people who responded to the ALC’s request for volunteers, so perhaps that tends to select those who are unhappy rather than those who were happy)

 

(The fire-eating Court, in the title, is a callback to my blog about the risible conference where The Powers That Might Be Giants tried to placate legitimate concerns about Settlement Conferences with fluffy responses telling us we were all just silly)

Fire-eating pilot

 

I’ll give my own caveat for this post – I was extremely dubious about Settlement Conferences and my own Courts have been a pilot.  I remain very dubious that a national roll-out would be advisable – but I’ve had some positive experiences of Settlement Conferences, as well as one that was sadly ghastly and ended with people in tears. My own experiences would be more positive than the sample size in this research  (but even then, I’d say that just like FDAC it is the skill and approach of the individual Judge rather than the idea and philosophy itself that makes the difference between success and failure.)  I have certainly not observed the judicial pressure spoken of in the research, but have been told about it by lawyers in other parts of the country and I know it happens.

 

The ALC research, even with those caveats is damning.  In every regard

 

Click to access Settlement_Conference_Research_Report_.pdf

 

 

Some of the things that really struck me

 

The Protocol Principles (2016) were not applied consistently by judges. Variation in approaches

covered the delivery of a preamble, attention to consent during the procedure, pressure on

parties and advocates, and approaches to the involvement of advocates.

 

Very few judges made explicit their criteria for selecting cases; almost all respondents (17/19)

did not know how or why their case(s) had been selected. In one court all cases were selected,

in others, respondents thought selection was random or idiosyncratic.

 

Some respondents (8/19) had not observed imposition of the procedure on parties but there

were concerns that once a judge presented the procedure as ‘routine’/the ‘norm’, it becomes

very hard to resist.

Similar numbers (7/19) reported the procedure had been imposed on a party. Examples

included parents with limited capacity, some who did not really understand the proposal and

some reported as bewildered by the procedure

 

A small number of judges were variously described as brutal, harsh, blunt and insensitive with

parents, with the latter effectively backed into a corner.

 

A minority of judges were described as not exerting pressure on parents to concede an order;

most however applied some pressure: it could be direct and forceful – or it could be subtle but

potentially disarming – or it could be both.

 

Some parents were unhappy about the approach of some judges in trying to persuade them

to agree to an order; some left the court in distress, some reported feeling bullied, threatened,

intimidated and coerced.

 

Overall, 5/19 respondents experienced at least one procedure where it had not been possible

or it was difficult to give a client advice during the procedure

 

The picture is mixed; very few respondents (2/19) said unreservedly, the procedure was fair;

5/19 respondents said it had not been fair.

Many (8/19) had mixed experiences; it had been fair in some cases but not in others. A small

number (3/19) said while procedures were fair ‘in the main’, there were pockets of concern

and thus caveats.

 

Overall, most advocates said a properly conducted IRH could have reached the same result but

restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/

no time for judicially led discussion, negotiation and party reflection.

 

There has been little discussion or analysis of issues of power and due process implications29 when

a judge bypasses an advocate and negotiates directly with a vulnerable parent about complex and

difficult issues, some of which may be issues of evidence30. For some parents who are subject to public

law proceedings, issues of ‘learned helplessness’ may influence their responses to a judge31. They may

also not fully understand that having agreed to try the procedure, they nevertheless are free to leave at any point; they may lack courage/not know how to call a halt during what may be an intense, judge led discussion. They are likely to need special preparation where there is a potential for them to agree to an order that results in the permanent removal of a child and which order will not be open to future challenge or appeal.

8 There is little/no evidence of robust research – or proposed research about whether/how parents –

often with profound problems, are prepared for settlement conferences, whether they fully understand and are able to engage in the procedure on equal terms, whether they feel it was fair and what they understand about the benefits of a hearing and due process.

9 It would be naïve to suggest that the impact on parties and parents in particular, of judicial

utterances is negligible – that would be to deny the inherent power held by judges by virtue of their

role and status, and to ignore the profile of parents subject to care proceedings.

 

 

For example, one advocate discussed a settlement conference which started exactly like a hearing, the judge then asked the local authority and the guardian to leave the room, the mother and her advocate remaining. Seated beside the mother, the judge told her that her case was “totally unrealistic”. The mother broke down and ran out of court in tears. Her advocate followed to take further instructions.

 

[10/25] respondents raised concerns about the approach of judges. In one case a judge was described as blunt, insensitive and brutal with parents, conveying their prospects of success harshly, and in circumstances where the dispute was about the proposed adoption of the child. Another advocate compared two completely different approaches:

one judge talking very softly to the parents, explaining patiently and clearly what sort of order he

would make and why; another judge did not consider the parents’ feelings or difficult circumstances in

delivering his view as to likely outcome.

The first judge was described as no less child-focused than the second judge however his delivery was

of a different calibre: calm, patient and respectful, trying to get the parents to focus on the best interest

of the child – albeit his message as to the likely order was “clear and firm”. The second judge’s style

with parents was “quite blunt, and insensitive”. This respondent continued:

“where [a] case concerns placement for adoption, what parent is going to agree to adoption?

But my experience of [this settlement conference] was that it was quite brutal really. [The judge]

conveyed his view on their prospect of success, harshly – and the parent’s advocate wasn’t

impressed with that either. [He] also felt it was insensitive.” [R-2]

 

 

This respondent along with others said a lot of parents attending settlement conferences are likely to have learning difficulties or were otherwise highly vulnerable, and it was a cause for concern:

“It feels unfair that quite often they’re being encouraged to settle [although that is not their

instructions…] and if they don’t want to settle they have right to hearing …notwithstanding [any

advice as to] likely success. So, I find it difficult that a lot of the people going to these settlement

conferences and settling are parents who have learning difficulties [and who] would sometimes

benefit from having their case heard and getting their views, wishes, feelings across…I would say the majority of cases [I] have dealt [in settlement conferences] concern parents with learning difficulties”. [R-4]

The respondent was asked if he had any ideas for support to mitigate effects for vulnerable parents:

“The difficulty is, the whole process is quite overwhelming for them; a lot of them find meeting

judge, and judge sitting next to them also quite overwhelming. It seems that sometimes the

procedure results in [an agreed order] because the parent is sometimes just completely taken

aback by it.” [R-4]

 

A minority of respondents [4/19] said in their case(s) the settlement conference judge had not applied any pressure on parties

One respondent spoke of a case in which a mother had been strongly encouraged to accept the LA plan at a Settlement Conference, did not do so, and then at final hearing secured the child living with them. That’s just a horrible thought, that if the mother had been less able to stand firm, she would have lost her child when testing the evidence the right thing was for the child to be with her.

Overall, nine respondents reported settlement conferences where clients complained about the

approach and behaviour of a judge: some expressed it at the time, for example, by leaving the court, some complained to their advocates about feeling bullied, coerced, intimidated, cornered, and not listened to by the judge.

One parent said bullying by the judge was aimed at getting him to “cave in”. Some of these

experiences were confirmed by advocates. For example, in one case where a parent reported being

bullied by the judge, the respondent concurred with the client’s appraisal of the judge: ‘it had felt quite abusive at times’ [R-16].

 

About a third of advocates were not confident of continuous consent from their client; too

much pressure was exerted by judges and indications of distress and other signs of client

anxiety were not picked up by the judge as indicating, at least, a need to revisit ‘consent’ or

as indicating consent was effectively being withdrawn/the procedure should stop.

 

Just two respondents (2/19) had no concerns about fairness in the procedures they attended

 

 

As I said, even with all of the caveats, this is a damning report.

 

So I expect the MOJ report, when it arrives, to focus on savings and roll it out nationally.

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No more ‘business as usual’

Posted on January 25, 2019 by suesspiciousminds

 

 

We have our first View from the President, from our new President.

 

Here it is

Click to access amcfview-1.pdf

 

A few working groups established, and due to report by Easter 2019 (Public Law, Private Law and Experts)

A lot of the speeches that the President has given are about work volumes and well-being, and that’s the focus for this post.

 

In the meantime, every professional engaged in work in the Family Courts must, I fear, continue to experience the adverse impact of the high volume of cases. I have, on every occasion that I have spoken about these issues, stressed my concern for the well‐being of social workers, lawyers, judges and court staff who are conscientiously continuing to deliver a professional service in a timely manner despite the increase in workload. Other than doing what I can to understand and address the underlying causes (which will obviously take time), there is little that I, as President, can do to relieve the current pressure. It is, however, I believe right for me to say publicly in this ・View・ something which I have said on some occasions to some gatherings in the past few weeks. In these highly pressured times, I think that it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ・business as usual・. For the time being, some corners may have to be cut and some time‐limits exceeded; to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn‐out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges.

I would encourage local dialogue between the legal profession and each DFJ on this topic so that some parameters may be agreed as to what is and is not sensible or acceptable in terms of working practices during the next 6 months or more. The following are no more than suggestions for what might be discussed and agreed:

‐The earliest time of day when the court can reasonably be expected to sit;

‐The latest time of day when the court can reasonably be expected to sit;

‐The latest time in the evening, and the earliest time in the morning, when it is

acceptable to send an email to another lawyer in a case or to the court;

‐Reducing the components to be expected in a ・Position Statement・ to the

minimum required (for example simply one side of A4 using bullet points) on the

basis that a fuller oral position can be outlined at court if required. Other possible topics for agreement may well present themselves to those of you who are regularly undertaking this work.

As family lawyers and judges it is, for me, a total ・given・ that you will go the extra mile for the sake of the child, the parties and the system when this is needed. You will, I am sure, continue to do so. My present purpose is to acknowledge publicly that we are currently in a situation that cannot be accommodated simply by working beyond what can reasonably be expected every now and again. As Sir James Munby rightly observed before 2016, when declining the encouragement of others to require the courts to make an extra effort to achieve the 26week deadline, the system then was working flat‐out. That was before the 2016/17 increase of 25% in workload. In terms of considering just what the system can sustain recalling Sir James・ words at this stage is timely. My aim in now saying what I have is to give each of you, as the psychologists would say, ・permission・ to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected from those appearing before and working in the courts.

 

There will be some interesting discussions arising out of this.  (For my part, I would love to see an end to Position Statements that say the same as the statement filed two days before, or ‘instructions will be taken at Court’ or ‘my client has not yet provided instructions on this issue’  – as all of that adds nothing)

Can the genie of ‘always available by email’ be put back in the bottle? I’m not sure, but I think it would be a very healthy debate to have.  It savagely impacts on quality of life when people can never switch off from this work, which is emotionally draining and challenging in and of itself, without never having any down-time from it.  I applaud the President for moving away from font sizes, margins and the welfare of the bundle is paramount approach, and thinking about things other than process.

 

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