Author Archives: suesspiciousminds

It isn’t Re JB, it is Re C

Posted on October 21, 2013 by suesspiciousminds

The Court of Appeal case I talked about at the weekend, which decided that the original Judge had not been wrong in making a Placement Order (and thus showing that the Court of Appeal aren’t just going to say “no” to every single Placement Order) is now out on Bailli and is Re C (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1257.html

The predominant challenge to the Placement Order, both at trial and in the appeal came from the maternal grandmother, EB, who had sought a Special Guardianship Order instead. She had been assessed by the LA unsuccessfully but was supported by an Independent Social Worker.

  • The judge held ([70]) that there were “a number of very important points to be made in [EB’s] favour”. She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.
  • However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB’s suitability. These were:

    i) He doubted ([72]) EB’s ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be “confusing” for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

    ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB’s ability to manage.

    iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

    iv) He was concerned about EB’s relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG’s concern about a recent incident when J was taken to EB’s home and appeared to be upset.

    v) Finally the Judge pointed to what he described as a “lesser concern”. He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as “not a positive attitude” to the father. The judge later said that his decision was primarily based on the first four of the concerns.

     

  • Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:

    i) A suggested lack of emotional warmth from EB towards J;

    ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

    iii) An incident involving EB’s use of a knife in 2007 in a wholly different situation.

     

  • Having considered these matters the judge expressed his conclusions about EB at [80] as follows:

    “What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J’s] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J’s] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey

The Court acknowledged that the Judge had not carried out the sort of Re B-S or Re G style balancing exercise, holistically comparing the relative merits of each of the options against one another, rather deciding the case in a linear fashion by dispensing with the mother, then grandmother and thus leaving adoption as the only option ‘left on the table’ .   We know that the Court of Appeal have recently determined that this is wrong and that many (I count seven) Placement Orders have been refused or sent back for re-hearing on that basis.

The Court identify that the structure of the judgment is badly flawed

  • I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is ‘linear’ in form, despite the fact that, at paragraph 63, the judge identifies

    ‘one alternative here is the local authority’s care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J’s best interest. To decide that I have to look at the alternatives.’

    What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

     

  • Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of ‘approving a care plan for adoption’ by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.
  • By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.
  • The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages (‘care order’ and only then ‘adoption’), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind

However, it seemed that the Court of Appeal did not feel that the decision itself was the wrong one, and thus find themselves between a rock and a hard place. On the one hand, the principles of Re B-S haven’t been adhered to, on the other, the final outcome appeared right to the Court of Appeal. Should they send it back for re-hearing because of procedural flaws, or take a pragmatic approach that despite those flaws the right decision was made?  (Arguably, how CAN the right decision have been made if the process was so flawed? )

The Court of Appeal thus had to do some rowing  (both in the debating sense of the word and the moving oars in a boat metaphor sense) to help retrieve the position.

  • In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:

    a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

    b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

    c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

    d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J’s welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

    e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB’s ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child’s best interests.

  • In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge’s decision was proportionate and, in the context of J’s welfare, is not ‘wrong’. As a result of those conclusions, I would dismiss this appeal.

I see a future of Local Authorities waving this decision and parents waving Re B-S.  The tranche of post Re B-S appeals is going to be vital in understanding whether the Court of Appeal requires perfection in terms of the holistic balancing exercise, or whether as here if the Court of Appeal can look at the judgment and deduce that a holisitic exercise would have achieved the same outcome the Judge was not wrong.

I am slightly surprised that the Court of Appeal didn’t lay down a marker that this case was considered exceptional because not all of the key judgments had been available to the trial judge at the time of making his decision (although that didn’t prevent the other seven cases) and that for all cases where judgment was given post Re B-S, the expectation would be that any judgment that did not follow those principles would be likely to be wrong. Despite my surprise, the judgment DOES NOT DO that, and is thus arguably authority for the Court of Appeal looking beyond the mere structure of the judgment and into the facts of the case to see whether the decision itself appeared ‘wrong’

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Unreasonable behaviour – Weatherfield style

Posted on October 21, 2013 by suesspiciousminds

(No-TV-Neville, this one won’t be for you. Nor anyone else who doesn’t know who Leanne Tilsley nee Barlow nee Battersby is)

NOTE ON FILE  –  From District Judge Sharples to Her Honour Judge Tanner – unreasonable behaviour petition received, think you need to run your eye over it. A bit hard to call

I, Leanne Tilsey (The Petitioner) seek to divorce Nick Tilsley (the Respondent) on the grounds of unreasonable behaviour. It is mostly adultery really, only it doesn’t count as adultery, because it happened before we got married.  It would have happened on our wedding night (25th December) only that wedding didn’t happen on account of how my mouthy sister Eva (who had previously slept with the Respondent) told the Respondent during the ceremony that that morning I had tried to engineer a reconciliation with my former husband, Peter Barlow, only to find that his new partner, Carla had got back together with him overnight.  Carla does not like me (probably because when I was working as a call-girl, her husband was a regular client of mine and when he kidnapped me and put me in the boot of his car, that accidentally led to his death)

Anyway, later on, I explained to the Respondent that I had not really wanted to get back together with Peter Barlow (having had an affair with the Respondent shortly before that first wedding to Mr Barlow, it was the Respondent that I really loved) and we therefore married on 31st December (there being no difficulty with licences or venues, that being such a quiet time of the year and so easy to get things organised)

What I had not known is that the Respondent, on the evening of the 25th December (that being the day that I had ruined his life in front of everyone who knows him by showing that on the day of our wedding he was second best to a man who smokes, is an alcoholic, ran off with another alcoholic and always looks like he could use a good bath – namely Mr Barlow) he got drunk on champagne and slept with his brother’s wife.  Whilst indupitably we were at that time ‘on a break’ having not gone through with our ceremony, it was his brother’s wife! That’s got to be unreasonable, right?

Well, if not that, then the fact that he never told me about it, and when his brother found out and tried to kill him, the Respondent was in a coma and I was by his bedside constantly, going through agonies.  And then it all came out at the christening of his brother’s baby (which does turn out to be the brother’s child, not the Respondents, although they didn’t know for sure till they did a DNA test). That MUST be unreasonable behaviour, even though it wasn’t his fault because he had agreed to keep it quiet and it was his brother’s wife who spilled the beans.

In case any of that is not unreasonable, I plead these two facts

1. Whilst in the coma the Respondent grew a beard and it absolutely doesn’t suit him.

2. He never laughs when I say to him “I just sold a car quick-quick” because he used to be in that advert.  (He’s the one with the ears who says “hee-hee” really badly)

Please give me a divorce, so that I can move on with my life and probably end up with Steve MacDonald at some stage in the future, everyone else I know has.

 

Oh, I forgot to mention that I should have custody of Simon, who is a child I was stepmother to in my relationship with Peter Barlow – I am no birth relative, but I managed to keep custody of him anyway. Nobody really knows who Simon’s mother is, she’s almost certainly dead. I’d check under the Barlow’s patio, to be honest – the two women in that house have been to prison already and the bloke who lives there [removed on legal advice]

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No wonder you’re late – why this watch is exactly two days slow

Posted on October 19, 2013 by suesspiciousminds

Yet more quest for perfection from the President. Mark this well.

 

Re W (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.

 

    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.

 

    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.

 

    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

 

    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.

 

  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

 

Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?

 

Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?

 

    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.

 

    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.

 

    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):

 

“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.

 

    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.

 

  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.

 

The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.

 

So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

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I’ll see your B-S and raise you JB

Posted on October 19, 2013 by suesspiciousminds

Sadly, Re JB (Children) 2013 isn’t up on Baiili yet, but it will be very important for anyone who is doing a case involving adoption.  It is Court of Appeal, and post-dates RE B-S – in one of those quirks, I think that when it was being orally argued, Re B-S was not out, but it was out and taken into account in the judgment.

You may remember some of these key points from Re B-S

1. Vital to have in mind the striking language used by the Supreme Court (for which read Baroness Hale) about proportionality in Re B

2. Linear approach (as in my last post) is out, and the Court have to look at all the options holistically

3. Judgment has to consider all of the advantages and disadvantages of each placement option for the child, with rigour

4. Can’t rule out the parents simply because that option requires more support than the LA wish to provide.

 

And we know that seven cases (so far) have had Placement Orders overturned and sent back for re-hearing for not following those principles, even though many of them weren’t in existance at the time the Court who made the order decided the case.

 

Well, in Re JB, the Court of Appeal identify that all of those features are lacking in the judgment. They also add in that there is a relative, rejected by the LA, effectively because the support that would be required would be too high.

What you would assume, therefore, is that the Placement Order would be overturned, and the case sent back for re-hearing, perhaps with some additional judicial guidance about prospective kinship carers and support and what Courts have to do when faced with a kinship carer who still seeks to care even when faced with a negative report from the LA.

No, the Placement Order stood.

In the interests of fairness, it will only be when the judgment goes up and I can draw out and quote how that decision was reached that we can hope to put it into context, but in a nutshell, the Court of Appeal seemed to feel that if the Court HAD done those things they would have reached a decision of Placement Order and there was enough in the judgment to make the Court of Appeal consider that the Judge was not wrong.

How that helps anyone call an appeal’s prospects of success now is very hard; and how a Court at first instance is supposed to look at these two authorities (not so much on the analysis of options but the ‘support’ and ‘nothing else will do’ options) is beyond me.

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Hamfisted analogy time!

Posted on October 17, 2013 by suesspiciousminds

 

Hello, good evening, and welcome to this first episode of TV’s newest gameshow “You’re going to get bitten by an animal – for money!” (c)

The rules are simple, we have three doors – A, B and C.  You choose a door. Behind each door is an animal, and you are going to get bitten by it. Then I am going to give you some money.  You don’t know how much money, the only thing you know is that the most money is for picking Door A, then the next highest is Door B and the lowest amount is Door C.  Now, it might be that the difference between Door A’s money and Door C’s is Fifty thousand pounds, or it might be fifty pence. You just don’t know.

The only rule is, that I will tell you what is behind Door A – you decide whether to choose that door, or reject it. If you reject it, we move on to Door B. It’s too late then to go back to Door A. If you have rejected Door A, and Door B, then and only then do you move on to Door C.  And you have to go through Door C and get bitten by that animal.  Door C is the last resort.

 

Okay, here we go !  Behind Door A is…..   A rottweiler

Are you going to choose Door A, or reject it and move on to Door B?  You don’t know what’s behind Door B – it might be better, it might be worse… that’s the gamble.

 

Assuming you’ve rejected Door A, we go on to Door B.  And behind Door B is….  a chimpanzee.

Are you going to choose Door B, or move on to Door C? The last resort door.  It could be anything – it could be a tortoise, it could be a hamster, it could be a grizzly bear.

 

And this is an example of why the Court of Appeal (notably McFarlane LJ  in Re G, and the President in Re B-S) have concluded that the linear decision-making model is flawed.  If one accepts that the test for Placement Orders is that they should be the ‘last resort’  (this being extrapolated by the Court of Appeal and Wall LJ in Re P, and expanded to ‘nothing else will do’ now – and it is the law, until either the Supreme Court, ECHR or some legislation say otherwise),  then you can’t just reject Door A (parents) and then Door B (extended family) and saythat Door C is the right option for the child and the last resort, just because its the only thing left.  As McFarlane rightly says, if you are going to proceed in a linear fashion and rule out options because they have deficiencies  and then go with whatever is left, you’d end up with the potential for the decision to have been different had you STARTED with Door C.

If, for example, Door C is the grizzly bear, suddenly that rottweiler behind Door A doesn’t seem that bad. You might well have picked Door A, had you known what was behind all three doors from the start.

 

In this example, you also only get to look at the disadvantages – what sort of animal it is that’s going to bite you, and not the advantages – the cash that’s on offer for being bitten. You need to see not only what the Disadvantage of picking each door would be, but also what the Advantage might be.  And you see that laid out clearly, for the range of options before you start deciding which to pick, Only then can you try to make any sort of rational choice.

So, whilst the decision in Re B-S that the social work final evidence has to lay out what’s behind every door – advantages AND disadvantages for each option and robustly analyse each, is going to be a huge culture shift and a massive pain in the neck to prepare, it’s one that makes a degree of sense, when you think about the exercise that’s involved.    {There are quite a few other things in Re B-S I have an issue with, and I’ll come back to those, but this one feels right, although it is making my life difficult at present}

 

 

 

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“Dual-planning in final care plans– does it exist post Re B-S?”

Posted on October 14, 2013 by suesspiciousminds

Cases in the County Court don’t often make it onto Baiili law reports (though at some impending future time they all will), but this one is interesting and potentially important, not least because it identifies a conflict between two existing Court of Appeal authorities.

 Re D-R (Children) 2013

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/5.html

 His Honour Judge Bellamy dealt with the case (he being a Judge who occasionally sits in the High Court, and a very competent crafter of an analytical judgment)

 The case involved six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applied for placement orders in respect of each of the five younger children.

 The parents accepted that they were not able to care for the children and that the threshold was crossed. No other family members were being put forward. The case, two months ago, would have been pretty simple. Placement Orders for the younger five children, Care Order and long-term fostering for Ian.  Most of the debate would have related to contact, and particularly sibling contact between Ian and his younger siblings.

 However, in our new landscape, two interesting questions emerged.

 

  1. As, in order to make a Placement Order, the Court must be satisfied that “nothing else will do”, what happens if the judicial analysis of the advantages and disadvantages of adoption v long-term fostering come down on the side of adoption being a better placement outcome for the child, but NOT to the point where long-term fostering could be dismissed as a potential option that on analysis “will not do” ?

 

  1. Does the fairly common care plan of “search for adoption placement for six months under a Placement Order, and if not successful search for long-term fostering”    (dual-planning, as endorsed by Wall LJ in Re P) stand up to Re B-S ?   If one is saying that ‘long-term fostering’ would do in six months, then how can at the same time one say that it is an option that will not do?

 

And tied into all that is what the hell “nothing else will do” means when the Court is considering all of the other options.  In order to say that “nothing else than adoption will do”  isn’t the Court in effect saying in relation to each of the other options that they “won’t do”   ? (rather than that adoption, taken in the round,  has advantages that outweigh the advantages of the other options for the permanent care of this child?)

 

If that is right, and it is certainly one reading of Re B-S, that in effect the Court of Appeal have determined that adoption is not an option available to the Court unless all of the other options are excluded on a careful comparison – adoption is off the table unless all other options are discounted

 

 then the fact that a Court might decide that it is by far and away the BEST option of the range available for this particular child counts for little or nothing. And where does that leave s1 of the Children Act 1989?  It seems as though a Judge might have to make an order that doesn’t feel like the one which is in accordance with the child’s best interests.

 

[My own take on that would be that it feels deeply uncomfortable for a Judge to decide that adoption is better for the child than long-term fostering and then have to go for long-term fostering IF you are looking at it in terms of the Judge choosing the ‘best option’,  but IF you flip that around and look at it in terms of the Judge choosing the ‘least worst’ option, it probably works  – perhaps I’ve just been re-reading too much Daniel Kahnemann this week]

 

Whilst it was easy to frame Re B-S as being a conflict between adoption and parents as the options, it may be that the harder tussles are between adoption and long-term fostering.  There are many arguments that can be deployed about why adoption for a particular child is better for that child than long-term fostering (and vice versa) but limited arguments that would allow long-term fostering to be discounted as an option that “will not do”

 

In this case, Re B-S had arrived in fairly close proximity to the hearing, and the Local Authority final evidence had not as a result contained the analysis of the options now required. The Judge considered an adjournment but instead decided that the analysis could be drawn out of oral evidence, cross-examination and submissions.

 On the first issue, of what happens where adoption looks preferable to long-term fostering, but it cannot be said that long-term fostering “will not do”

 I have underlined the critical passages

 99.      Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
{I have snipped the balance sheet exercise for pacing, but it is worth a look}

 
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.


105. Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.


106. In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.


107. On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.

 

On the dual-planning issue

 

88.      Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).

 

Re P is undoubtedly a very strong authority for sanctioning a dual-planning care plan of the type “Look for adoption placement for six months, and then long-term foster if not successful”  – it is a Court of Appeal authority, the former President gave the judgment – it gives the practice ringing endorsement and deals with the topic in detail, and it absolutely isn’t up to a County Court Judge to decline to follow that precedent when the issue is absolutely on point.

 

The obvious issue, as the Judge went on to raise, is that if in order to make a Placement Order the Judge has to say that long-term fostering won’t do, then approving a plan in which long-term fostering is the back-up seems to conflict with that.

 

I.e there is a tension between Re P and Re B-S. Both Court of Appeal authorities.  Added to the complication is that the Court of Appeal in Re B-S specifically looked at Re P and quoted it approvingly (though not on this particular dimension) so they clearly did not determine that it was no longer good law  (if indeed they could)

 

112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.


113. That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?


114. I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)

‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”’

 

I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.


115. If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.

 

 

 

I have a suspicion here that the higher Courts, maybe even the Supreme Court, are going to have to look at the tension between Re P’s endorsement of dual-planning and the logical consequences of Re B-S that if long-term fostering is a viable option for a child, you can’t make a Placement Order just because adoption is a preferable option.  And that perhaps by publishing this judgment, the Judge had in mind that this issue needed to be brought into the light to be scrutinised.

 

(In the meantime, I don’t think I’m minded to run any dual-planning final care plans)

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We’re going to need a bigger bundle”

Posted on October 13, 2013 by suesspiciousminds

 

The Court of Appeal decision in Re W (A child) v Neath Port Talbot Council 2013

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1227.html

 

You may recall all of the President’s guidance recently about how bundles in care proceedings were going to become lean, mean fighting machines, stripped of all excess information like a formula one racing car; well that took a bit of a hit with Re B-S, which required that Local Authorities and Guardians unpackage all of the concepts that were traditionally contained in shorthand phrases and lay them out for inspection, not only in general but in application to the particular child in the case, and now Neath Port Talbot expands final evidence even further.

 

The Court of Appeal lead judgment is given by Ryder LJ, but the chilling /delightful bit  (depending on which side of the fence you sit on) is from the very small judgment from the President

I agree with the judgment given by Ryder LJ. There is nothing I can usefully add except to emphasise the importance of the principles he has set out so clearly. His judgment explains and elucidates the respective functions of the court and the local authority in care cases. It complements the recent judgment in Re B-S, which explains and elucidates what the court requires from the local authority (as well as from others) in those care cases where the plan is for adoption. The principles in these two judgments will for the future inform practice in all care cases

 

So, this isn’t going to be case-specific stuff, it is general principles.

 

The appeal itself covered three areas, and I’m largely going to concentrate on the middle one.

 

1.    A Judge who wanted to embark on a finding of fact exercise that the Local Authority and the mother didn’t seek (largely because a psychologist expert in the case urged the Judge to do so)

2.    The extent to which Local Authority final evidence should set out not only the detail of their own care plan, but the detail of how they would manage the case and what resources would be provided under the various other placement options for the child.

3.    What the Court is to do where the care plan they have in mind is not the same as the Local Authority’s care plan.

 

On point 1, which frankly bogs down in a lot of detail the other more important principles of the case; this would normally be a fascinating subject to write about, I just wish that it had arisen in a case that was confined to that issue.  It was a peculiar one, and the Judge ended up making a Care Order with a care plan that the child would be at home with mother and receiving significant support.  Neither the LA nor the mother wanted a care order, and the Judge effectively made a Care Order and endorsed a care plan that wasn’t actually placed before her.

 

The Court of Appeal felt that it WAS open to a Judge to decide what facts needed to be determined, notwithstanding that that view wasn’t shared

 

  The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek.

 

On point 3, the Court of Appeal spent some considerable time analysing what is to be done where the Court having heard all of the evidence and argument wants to make a Care Order with a care plan that the Local Authority do not put forward.

 

“In relativity, Matter tells Space how to curve, and Space tells Matter how to move. The Heart of Gold told Space to get knotted and parked itself neatly within the inner steel perimeter of the Chamber of Law”  – Douglas Adams

 

 

In the Children Act 1989,  the Courts tell a Local Authority what order they can have, and the Local Authority tell the Court what they will do with that order. The Court of  Appeal just effectively told Local Authorities to get knotted.  I’m paraphrasing, of course.

 

We’ve historically had authorities that show that the Court can invite the LA to change their care plan, and that LA’s should listen carefully, but nothing that settles what happens when immovable object meets irresistible force.

 

This is what the Court of Appeal say

 

  It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court.

  Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question.

 

 

Yes, but what is the Court to ACTUALLY do? Here is Ryder LJ’s final solution, in addition to a hint on judicial review (although that begs the question of who the hell would issue a JR to make the LA’s order for a child at home a CARE order rather than a Supervision Order. I’m damn sure the parents won’t. Ryder hints that the child’s representatives might well be the ones to do so…I am not so sure about that)

 

 

The court considered the invitation to give an indication to the local authority and allow them to reconsider their position but came to the conclusion that even in a case where the child is to remain with a parent the proper administration of family justice and the detrimental effects of continuing litigation required immediate and timely action. Partnership working sometimes needs sanctions for compliance. In the unlikely event that a local authority declines to abide by a judge’s orders and directions in the future, the judge should inform the local authority’s monitoring officer appointed under section 5 of the Local Government and Housing Act 1989 to make a report to the authority with the intention that the authority is brought back into compliance.

 

Leaving aside issues of what the heck the Monitoring Officer could actually do to make the LA change their mind,  the “I’m telling on you” playground vibe to it, the  issues of conflict that this throws up (a substantial proportion of Monitoring Officers being the Head of the LA legal department) and that none of this is going to be done quickly, this seems very much to me like the Court of Appeal giving the green light to Judges who seek to impose a Care Order with a plan of the child being at home on a Local Authority who’s position is that if a Care Order is made the care plan should be that of separation.  How is this not the Court writing their own care plan, and the separation of roles being torn up?

(I happen to think that there might be very good policy reasons for changing the Act so that Courts have that power, but that’s not the way the Act is constructed. This is a power grab, of the kind that the House of Lords kicked into touch with  starred care plans.

I do wonder if Neath Port Talbot will appeal that aspect. For my mind, if a Local Authority plan is for placement with mother, then the Court can (though should do so reluctantly) impose a Care Order on them when they asked for a Supervision Order.  If the PLAN is separation, then the Court’s power is limited to inviting the LA to change their plan, making an ICO if the case warrants that, or making a Supervision Order.  It now seems to be that the Court will simply have the ability to keep the LA in after school until they agree to change their plan.

Of course, being cynical, I have suspected for a while that a consequence of the revised PLO will be more rehabilitation cases which haven’t been properly tested over time, and to avoid rafts of Supervision Orders coming back when they don’t work, the Courts would eventually shift to making Care Orders at home, something most LA’s are very apprehensive about. This paves the way for that. 

And I can see some merit in it – if the Court concludes, having done the Re B-S analysis that the risks are manageable at home, but not under a Supervision Order (say that it is obvious that the need for support won’t dissipate after a year, or even 3 years, or there is a need for the LA to share PR) then there will be circumstances in which a Care Order is the better order  – notwithstanding that the LA won’t want it, and the parents certainly won’t want it (the Care Order giving the right for the LA to remove the child without going back to Court, that’s no something you want hanging over you).  The circumstances in which a Local Authority would not take up the Court’s invitation to change a care plan are fairly limited, it is never something done lightly and is never a decision made by the social worker or manager alone – it goes very high up the chain of command. 

Anyway, on to the big bit, which fortunately can be summarised in fairly short order. Underlining is mine, for emphasis

 

101. The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority make it clear that they will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case they can be subjected to challenge in the High Court within the proceedings. If and in so far as the local authority are of the opinion that they need to change a care plan option approved by the court once the proceedings are complete, they are entitled to do so and must do so in accordance with the processes laid out in the regulations. If they do so without good reason they will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.

 

 

Thus, as well as now having to encapsulate in their final evidence an analysis of the advantages and disadvantages of each possible placement outcome available for the child, the LA have to in effect submit a care plan for each of those options

 

AND

If the Court give a judgment and ask the LA to file an updated care plan based on those evaluations, the LA must do so.

Those are the two bits that the President endorsed in his brief paragraph, and thus become applicable law to ALL cases, not restricted to this one.

Thus, having rewritten final evidence for cases to include Re B-S compliance, those statements are now going to have to be written again to make them Neath Port Talbot compliant.  And if the evidence is already lodged and the parents have responded, how Article 6 compliant is it for the LA to file such vital addendum evidence and the Court move to final hearing without the parents having had opportunity to respond?  (I suspect the 26 week target statistics are going to take a nose-dive in the interregnum period)

 

 

 

 

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Yet more Serious Case Reviews

Posted on October 11, 2013 by suesspiciousminds

 

Whatever the collective noun for Serious Case Reviews is  (a flurry, a murmuring, an avalanche, a papering, an omphaloskepsis*, a whitewashing?) that’s what we’ve had over the last few weeks.

 

The first I read about this week was from Glasgow, and involved a foster carer who was murdered by a young person placed in her care.  The main lesson was to have been cautious about the very good progress this vulnerable and damaged young person was making in the early days of the placement and to have had proper access and regard to the full chronology of his troubled life.

 

http://www.glasgowchildprotection.org.uk/CHttpHandler.ashx?id=17069&p=0

 

 

The second was Child T, a four year old in Haringey. 

 

http://www.haringeylscb.org/child_t__full_serious_case_review_overview_report-2.pdf

 

Now, if there’s anywhere in the country that is nervous about Serious Case Reviews, it would be Haringey. They were the authority in Victoria Climbie and Baby P, and they really don’t want to have a third tragedy.  They were brave to hold this one, since it didn’t automatically meet the criteria and they could have ducked conducting one.

 

In my opinion, they did the right thing in conducting one – I may as well say up front here, that there are real problems with the way they managed the case prior to that decision. (Whilst I think professionals are often harshly blamed after the event for failing to see into the future, this isn’t one of those. Sometimes a cock-up is just a cock-up, and I won’t defend those.  I have to call this one as I see it, and children were harmed here over many months as a result of professional error)

 

The child did not die, fortunately, though on removal in 2011 was found to have fifty bruises on his body. On my count, there were four episodes of bruising. Alarmingly, the last happened AFTER he was seen with 50 bruises, a few days later, whilst the case was being prepared for Court with a plan of him continuing to live at home.

 

 

(A) On Wednesday 30/6/10, at 10:30 pm, Child T was taken to the Accident & Emergency Department (A&E) at North Middlesex Hospital (NMHUT) by his mother and Mr C. He had bruising around the eyes, forehead and nose. Bruising and swelling was said to have become worse during the day. Mr C said that Child T often ran around the house and ‘bangs and hits himself on the wall’ 

 

Child T was three years old at the time. You may, if you are familiar with Baby P, be having shuddering sensations at the suggestion that the child’s bruises were self-inflicted. We have heard that before.

 

It gets worse than that though, because what follows is something that the professionals never had in Baby P – a direct disclosure

 

(B)On 4/7/10 a Polish speaking doctor, PR1, spoke to various family members who were visiting the hospital. He was told, by Child W, that Mr C had hit her so as to cause bruising to her bottom. PR1 spoke to CP2 who subsequently spoke to the Enfield Emergency Duty Team2 (EDT) as it was now the evening. It was agreed that there were no grounds to keep Child W in hospital that night but that the concerns raised should be followed up the next day. The following day, 5/7/10, before any follow-up action was taken, Child T was removed from hospital by his mother and Mr C, without the agreement of medical staff. Over the previous days Mr C had increasingly expressed his annoyance about the child’s prolonged stay in hospital, because, he said,of the disruptive consequences for family life

 

[Note the involvement of Enfield, rather than Haringey – it seems that the hospital were slightly confused about which local authority were responsible, but after that referral the case got properly passed on to Haringey]

 

 

I have to say, as a child protection lawyer advising local authorities, having missed (A) would be quite bad but not dreadful, but having missed (B) would be dreadful.  Having missed (B) against the backdrop of Baby P is, on the face of it, hard to fathom.

 

There were bruises to a young child, unexplained, the sibling was saying that the mother’s boyfriend hit the children, the boyfriend was being annoyed in hospital and the child was removed without the consent of the doctors. That is pure alarm bell territory.

 

(It doesn’t HAVE to equate to removal, but it is certainly something that ought to have made everyone involved very very concerned and vigilant)

 

A strategy meeting took place – the medical opinion was reported to be inconclusive  and the police who attended weren’t aware of a domestic violence callout between mum and Mr C that same day.

 

[This is what was actually said, and anyone who thinks that this is ‘inconclusive’ is on another bloody planet

 

The medical report considered at the Strategy Meeting had stated that “I am very uncomfortable with the injury on his forehead. I do not accept that a 3 year old child would bang his head with such severity and not cry out. In addition, bruising on the leftside is in a very unusual place and this cannot be incurred either from fallingor from play. I cannot exclude the possibility that some of these may have arisen from pressure from fingers”  ]

 

 

Despite the strat meeting having concluded and the case progressing to relatively low action on the basis of the social worker and police deciding that the medical opinion was “inconclusive”, the Consultant Paediatrician who first saw the child (CP1) wrote a letter containing this

 

(C) “I would like to highlight that this child had an injury to his forehead resulting in a haematoma… that could only have occurred if there were a large amount of force on impact … the second fact that concerns me greatly is the presence of bruising on the left side of the rib cage. This is an unusual place for bruising to be found in a child and implies a second mechanism of injury taking place, once again for which the parents claim to have no knowledge. My concerns here are that this is a 3 year old boy who has had two separate injuries for which there have been no explanations and each injury individually is concerning and in an area which is quite uncommon in a child of this age”

 

 

I’ve defended social workers before, and I will again, and I defended particularly the social workers in Haringey who worked Baby P because I think that they were fundamentally let down by a paediatrician who didn’t give them the medical evidence they would have needed to act and get the case before a Court.  The paediatricians here did their job properly and they simply weren’t listened to.

 

But I am afraid that this is a smoking gun. If that came across my desk, we would be having an amazingly urgent legal planning meeting (i.e, “I’m on my way to you, RIGHT NOW”)  to discuss this child and work out what we would be doing to keep the child and siblings safe.  If the conclusion was to work with the family to keep the child at home, I’m fairly sure we would have been getting the case before the Court to endorse that plan. I don’t think I’ve ever worked with any local authority lawyer whose advice would not have been “this is going before a Court, as soon as possible”

 

 

(D) On 9th August 2010, Mr C presented at his GP with self-inflicted cuts to his arms. The GP did not make any referral to social services.

 

(E) On 30th August 2010, the mother was seen at an obstetrics appointment with bruising on her arms – the notes showed up the suspicions of domestic violence, the obstetrician invited mother to be admitted overnight, mother declined. She was very nervous and keen to leave, and Mr C was very keen to get out of the hospital. No referral was made.

 

 

(F) On 31/8/10 Mr C took Child T to the GP, saying that he was concerned that he child bruised easily. He had bruises to his back and legs. The GP (GP1) arranged blood tests which indicated no medical explanation for the bruising. On 17/9/10 Child T was seen by a nurse (PN1) for immunisations. She noticed bruises on his arms, legs and back and asked a GP (GP2) to see

him. GP2 examined the child and arranged for him to be seen for follow-up on 22/9/10.

 

 

Now, I already thought that (B) and (C) were bad things to miss, but to add (F) into the equation just reinforces this.  Very often with Serious Case Reviews there’s a prediction bias and hindsight bias that means that working back from a known outcome, we tend to see all the footprints leading up to that event as being obvious and inexorable and that ‘of course that’s where this is all going, how could nobody see it’

 

But regardless of that, which is something to always be very cautious about; if you have suspicious bruises to a child, a strong paediatric opinion about those bruises and then another episode of bruising two months later; something needs to be happening.

 

A worker could, potentially, have gripped the case and made a decision that this risk could be safely managed at home; but that needs to be a conscious and deliberate and deliberated decision, not just inactivity resulting in that happening.  It is STAGGERING that the social worker on the ground didn’t ever share the paediatrician’s letter at (C) with his/her manager.

 

(G) On 14th September 2010, Mr C told his GP that he was injecting heroin every day. Three weeks later, he said he was drug-free and needed no further help.

 

(H) When the sibling child Y was born in December 2010, hospital staff noted tension and arguments between the mother and Mr C

(I) On 15th  February 2011, the case was closed by the social worker

 

(J)  Three days later, on 18/2/11 (a Friday) police were called to the family homeby Ms B who made allegations of violent conduct by Mr C to her and to Child T. Police could see that the child was extensively bruised and they arrested Mr C. Child T was left overnight with his mother. There was no recorded consultation with the EDT at that point

 

(K)The following day Child T was taken by police for medical examination and was seen by a paediatric registrar (PR2). The EDT had been made aware of the situation in the morning and both police officers and an EDT officer, EDT1, attended the medical. Child T was found to have more than 50 bruises of varying ages and sizes. He told the doctor of having been hit with a belt and a

stick by Mr C. The doctor judged that many of the injuries were caused by physical abuse and that others were ‘highly suspicious’

 

(L) The doctor spoke to Ms B who described how she had been the subject of repeated physical assaults by Mr C. She also said that she had suspected that Child T was being abused by Mr C and that Child T had told her this. She further said that Child W had now also spoken of being physically assaulted by Mr C and that he had tried to drown her whilst bathing her a few weeks previously. She said she had not told Ms B at the time as Mr C had made her promise not to do so.

 

And this is obviously where proceedings finally began, right?

 

Wrong. Professionals agreed with mum that Mr C would move out, and that the children would stay with her.

 

(M) On 22nd February 2011, the children were all medically examined. The medical opinion was that the three older children had all been physically abused by Mr C, and that mother had failed to protect them and that the children should be removed to a place of safety.

 

As a result of that conclusion, the LA decided that proceedings were inevitable.

 

(N) The next day, (23.02.11) the social workers met with mum and told her that care proceedings were to be initiated. In a police interview at around the same time, Ms B said that she knew that Child T was hit more frequently when Mr C was taking drugs

 

 

(O) A Strategy Meeting was held on 25/2/11. Information had been gathered from the various health services involved and, for the first time, the facts of repeated bruising to Child T were drawn together with the knowledge of the current and previous injuries. Agencies were concerned that Ms B and MGM were aware of the abuse and had not acted to prevent it. It also appeared that there may have been discrepancies in the accounts they had given to various agencies. However there had been no evidence that either of them was responsible for any previous physical abuse and there was no indication that the children might be directly harmed by them, or did not wish to be with them. It was confirmed that care proceedings were to be initiated but that there should be no immediate attempt to remove the children.

 

(P) On 28/2/11 Ms B told SW2 that Child T had new bruising. Ms B claimed that she had asked Child T about this and he had said that the injuries had been inflicted by that social worker, SW2. Later that day Child T was taken to Accident & Emergency, NMUHT, in the company of his mother, a different Social worker and an interpreter. Child T said that the “lady” hit him. When asked what the lady looked like and how she did it, he was unsure. Following a medical examination, where new bruising was confirmed, and some new bruising was seen on Child W, all four children were brought into the care of the local authority.

 

 

 

 

On this one, I’m afraid that there is blame – it isn’t just a failure to predict something unpredictable, it isn’t taking an informed decision that the risk was manageable and the outcome turned out bad. This is a basic failure not to recognise what risk looks like and what to do with it.

 

I feel bad for the people involved, and who knows what the workloads and pressures were at the time; but I’m afraid that this is systemic failure, not just making a judgment call that proved wrong after the event.  It is REALLY, really hard to see why that vital letter from the paediatrician at (C) never got escalated into a child protection issue. The social worker never discussed it with her manager, and it did not get escalated into a Legal Planning Meeting.

 

If this is happening at Haringey, which must be alive like no other authority to the perils of getting child protection decisions wrong, something has gone very badly awry – perhaps locally, perhaps nationally.

 

Again, as with Keanu Williams, the case was effectively ring-fenced into a ‘child in need’ case at an early stage, and thoughts about child protection disappeared once the decision was made that this was a “child in need” case.  Even then, things aren’t great – he wasn’t properly treated as a “child in need” with a formal plan and review system. He just got lost.

 

 

I agreed with Eileen Munro that when one looks at Daniel Pelka’s case through the eyes of any individual professional it is hard to say that they got it wrong and that another worker in their shoes would not have acted similarly, but that’s not the case here.

 

In many ways, this Serious Case Review raises more worrying issues than the Baby P one – in that case, the local authority never had in their hands the medical evidence that would have allowed them to save Baby P. Here, the evidence was handed over and simply stuck in a filing cabinet without its significance being absorbed or considered until this child and his siblings sustained many more months of physical abuse.

 

I’m not sure that it gives us ‘lessons to be learned’ in general practice – the individual failings here were so pronounced and obvious that the real lesson is ‘if people don’t do their jobs properly, bad things can happen’.

 

Haringey’s Local Safeguarding board response, in the interests of fairness, is here  – and the incidents were two years ago, so they have had time to make some changes.

 

http://www.haringeylscb.org/haringey_lscb_s_response_to_the_scr_of_child_t-3.pdf

 

(I didn’t think it was great, to be honest, and it was very light on how they would prevent social workers wrongly going down the ‘child in need’ path when child protection is the real issue. Or that a strat meeting could so utterly misunderstand what the medics were saying. But at least there’s now a powerpoint strategy.  )

 

 

 

 

*For those who have made it thus far, Omphaloskepsis is ‘navel-gazing’ – it came into prominence during the Renaissance, when there was much debate about what a painter should do when painting the midriffs of Adam and Eve. Did they have belly buttons, or having never been in the womb, were they smooth?  If God made Man in his own image, does God have a belly button, or not? Because this was such a controversial issue, many such paintings just have hands or branches covering the vital area.

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A head-scratcher

Posted on October 9, 2013 by suesspiciousminds

 

The decision in Re AW (A Child : Leave to revoke Placement Order : Leave to oppose adoption) 2013 and why it made me blink incessantly whilst trying to figure it out.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2967.html

 

It is a curious thing with English law, that we can end up with judgments and reported cases that are available to us AFTER big game-changers, but predate the actual game-changing case.  So although we have Re AW now, and we have already seen Re BS, the parties and the Court in Re AW were unaware of Re BS.

 

(Having said that, the Judge actually did an admirable job of balancing the competing factors, and it might actually comply with Re BS, despite having been decided in blissful unawareness of it)

Here’s the bit that made me blink

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

Are you also blinking? Read it again

 

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

It appears that what happened was that a care order and placement order had been made – the parents had not attended the final hearing because the mother was pregnant with another child and was trying to conceal that from the Local Authority.

They then appealed the decision, and applied to revoke the Placement order three times, unsuccessfully.

 

The child was placed with adopters and there seem to have been some threats of judicial review.  The parents had indicated their intention to apply again to discharge the care order / revoke the placement order, and the placement occurred against that backdrop. A letter of claim had been sent which clearly intimated a judicial review was in the offing.  That would have been much more slow to resolve than in the family courts (yes, some things are slower than family court justice)

The Local Authority had thought pragmatically about a solution, and come up with the idea that making an application themselves to revoke the Placement Order to get it before the Court, whilst simultaneously making it plain that they did not want the Court to grant their application was a device which might work.

 

Those representing the adopters were, understandably pretty aghast at that approach and considered it to be misconceived, and in effect allowing the parents to run a case for revocation without meeting the two-stage test for leave to apply to revoke set out in the case law.

Has there been a change of circs, does that change justify relooking at the care plan approved by the Court?  (The LA don’t have to meet that test, so the parents could effectively be inviting the Court to grant the LA’s application, and the issue of leave wouldn’t arise)

 

Blinking now?

Thankfully, the mess was resolved by the prospective adopters getting their adoption application in, which meant that the Court could actually litigate the matter by way of the parents applying for leave to oppose the adoption

Last week, on 7th August 2013, Solicitors representing Mr and Mrs A issued an application for adoption. That fact enabled Ms Fottrell to go on to submit that the parents might achieve their central aim of securing a substantive hearing by making an application for leave to oppose the making of an adoption order. No party disagreed. Ms Fottrell suggested it was the only remedy in the current factual circumstances which does not offend the letter and spirit of the statute. And whilst that contention is almost certainly correct, it has to be said that until proceedings for adoption were begun there was no other available legal vehicle so as to enable the court to be seized of the issues.

 

The remainder of the judgment deals with the evidence heard over a three day hearing (!) on those issues and the balancing exercise that the Judge conducted to reach the decision to refuse the applications.

 

I suspect that the balancing exercise survives Re BS unscathed, it is much more thorough and comprehensive than one sometimes sees, and the Judge very much had in mind that adoption was a last resort and why.

 

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You say “Investing”, I say “embezzling”, let’s call the whole thing off

Posted on October 9, 2013 by suesspiciousminds

 

Am beginning to be very fond of Judge Lush, who decided the JM and MJ case I recently blogged about.  This is another Court of Protection case.  The Court of Protection gets a hard time from people (including me), but I am massively in favour of the way this particular Judge is getting stuck into those people who end up being responsible for managing the affairs of someone lacking capacity and end up enriching themselves.

 

The Public Guardian v C 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2965.html

 

Miss Buckley entered into an Lasting Power of Attorney (LPA) in which she appointed her niece, C, to be her sole attorney. Miss Buckley lives in a nursing home, for which the fees are just under £1000 per week.  The nursing home became concerned about what Miss Buckley was saying about the way C was managing her affairs and an investigation took place.

 

  1. The application was accompanied by a witness statement made on 22 October 2012 by Yun Ding, an investigation officer with the OPG, which can be summarised as follows:

(1) Miss Buckley’s house had been sold for £279,000 on 28 April 2011.

(2) Between 17 January 2011 and June 2012 the attorney had withdrawn £72,000 from Miss Buckley’s funds to set up a reptile breeding business. The attorney claimed that this was a short-term investment which would generate a 20% return over a two year period.

(3) The attorney admitted that she had used at least £7,650 of Miss Buckley’s capital for her own personal benefit.

(4) The attorney said she visited Miss Buckley once a week, but this was contradicted by the nursing home, who said that she had not visited her at all until 16 October 2012, when she appears to have obtained Miss Buckley’s signature on some unknown documentation.

(5) At one stage there had been daily cash withdrawals of £300 (the maximum amount) from Miss Buckley’s Nationwide Building Society account.

(6) The Special Investigation Department at the Nationwide had alerted Social Services in April 2012 and the matter was also referred to the police, who interviewed the attorney in July 2012.

(7) Miss Buckley’s estate may have incurred a total loss of approximately £150,000.

 

(The withdrawal of the maximum daily amount from the Nationwide is a bit of a telling indicator here)

 

It seems that a lot of this money was being ‘invested’ in a company which specialises in breeding reptiles  (“so… many…jokes. must resist jokes”)

14.On 13 December 2012 Yun Ding made a second witness statement, the primary purpose of which was to exhibit Dr Barker’s report and to update the court on the OPG’s investigation as required by the directions order of 23 October. She concluded the statement as follows:

“From the evidence gathered so far, I estimate that Miss Buckley has contributed at least £87,682.53 towards the reptile investment venture described by C. In the absence of any contrary evidence, the Public Guardian maintains that Miss Buckley’s finances may have been used to heavily subsidize what appears to be a reptile breeding business, without any formal guarantee or security or her share of the alleged investment returns. C also appears to have misappropriated £43,317.47 of her aunt’s estate without obtaining consent, contrary to what she had told the police. I have therefore re-referred this matter back to the police to conduct further enquiries

It certainly seems a distinct possibility that this ‘reptile’ company was C’s own business, or one in which she had a direct financial involvement in. The “investment” led the Judge to give some general principles on investing when doing so under an LPA.

The investment of funds by an attorney

20.There are two common misconceptions when it comes to investments. The first is that attorneys acting under an LPA can do whatever they like with the donors’ funds. And the second is that attorneys can do whatever the donors could – or would – have done personally, if they had the capacity to manage their property and financial affairs.

21.Managing your own money is one thing. Managing someone else’s money is an entirely different matter.

22.People who have the capacity to manage their own financial affairs are generally not accountable to anyone and don’t need to keep accounts or records of their income and expenditure. They can do whatever they like with their money, and this includes doing nothing at all. They can stash their cash under the mattress, if they wish and, of course, they are entitled to make unwise decisions.

23.None of these options are open to an attorney acting for an incapacitated donor, partly because of their fiduciary obligations and partly because an attorney is required to act in the donor’s best interests. The Mental Capacity Act 2005, section 1(5), states that, “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

24.Mr Justice Lewison (as he then was) commented on this point in Re P (Statutory Will) [2009] EWHC 163 (Ch), [2009] COPLR Con Vol 906. At paragraph 42 he said:

“I would add that although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (section 1 (4)), once the decision making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely if ever be made in P’s best interests.”

25.Attorneys hold a fiduciary position, which imposes a number of duties on them. Like trustees and other fiduciaries, they must exercise such care and skill as is reasonable in the circumstances when investing the donor’s assets and this duty of care is even greater where attorneys hold themselves out as having specialist knowledge or experience.

 

 

31.Two of the most important factors when considering the suitability of investments are the donor’s age and life expectancy. Most donors are older people. Their average age is 80 years and 11 months and, in this respect Miss Buckley, who is 81½, is a typical LPA donor.

32.Short-term investment codes are generally more appropriate where an individual has an anticipated life expectancy of five years or less, and the guidance to court staff suggested that, “without clear medical evidence it would be prudent to consider a life expectancy of less than five years for new patients aged 80 or over.

 

 

And

  The second point is that, subject to a sensible de minimis exception, where the potential infringement is so minor that it would be disproportionate to make a formal application to the court, an application must be made to the court for an order under section 23 of the Mental Capacity Act 2005 in any of the following cases:

(a) gifts that exceed the limited scope of the authority conferred on attorneys by section 12 of the Mental Capacity Act;

(b) loans to the attorney or to members of the attorney’s family;

(c) any investment in the attorney’s own business;

(d) sales or purchases at an undervalue; and

(e) any other transactions in which there is a conflict between the interests of the donor and the interests of the attorney.

 

  The final point is one that has been made in the past, but needs to be repeated. Attorneys should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. I am not suggesting that attorneys should be able to pass an examination on the provisions of the Mental Capacity Act 2005, but they should at least be familiar with the “information you must read” on the LPA itself and the provisions of the Mental Capacity Act 2005 Code of Practice. Section 42(4)(a) of the Act expressly stipulates that it is the duty of an attorney acting under an LPA to have regard to the code.

  Commenting on the conduct of an attorney in Re W (Enduring Power of Attorney) [2000] Ch 343, at page 350 Mr Jules Sher QC said:

“… she ought to have known the law if she was to take on the responsibility of such an important fiduciary position, particularly as one of the few things expressly stated in part of the power itself is the following sentence: “I also understand my limited power to use the donor’s property to benefit persons other than the donor.””

 

 

A person taking on that responsibility to manage the affairs of a vulnerable person has to make themselves familiar with the limits on those powers, and ignorance of the law is no excuse.

 

It is not, therefore a massive surprise that the Judge didn’t consider that C had been properly conducting affairs on behalf of Miss Buckley  (incidentally, I think it slightly unfair that the innocent Miss Buckley is named, whereas C gets a cloak of anonymity here). There’s some lovely judicial understatement here  “One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice”

 

  I am satisfied that C has contravened her authority and has acted in a way that is not in Miss Buckley’s best interests.

  Even if one were to be generous and believe C and accept at face value her description of the way in which she has applied Miss Buckley’s funds as an ‘investment’, it was a highly unsuitable investment to make and she broke almost every rule in the book in making it.

  She did not obtain and consider proper advice from someone who is qualified to give investment advice. One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice by his ability in and practical experience of financial and other matters relating to investment.

  The investment was very high risk. When investing funds on behalf of older people, the perceived wisdom is that the investments should be safe and that very little risk is acceptable as can be seen from the short-term investment tables set out above. Even when investing funds long-term on behalf of a younger person, a hazardous and speculative investment of this kind would have been inappropriate for anyone in a fiduciary position to make.

  The attorney invested in her own business, which was in breach of her fiduciary duty. Paragraph 7.60 of the Mental Capacity Act Code of Practice states that:

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They also must not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

  The investment was also made in the attorney’s name. This was in breach of the guidance to attorneys given in paragraph 7.68 of the Code of Practice to keep the donor’s money and property separate. The attorneys’ admission in paragraph 16 of her witness statement – “I would like to state that I was not aware that the investment had to be made in her name and was concerned about signing on her behalf – is no excuse.

  C’s use of £43,317.47 (according to Yun Ding’s second statement) of Miss Buckley’s capital for her own personal benefit was way beyond the very limited authority to make gifts conferred on attorneys by section 12 of the Mental Capacity Act 2005. The attorney’s comments paragraphs 17 and 18 of her witness statement are no defence:

“I agree that my aunt lacks capacity to manage her own financial affairs and in my view she has become increasingly confused and is unable to understand the information relevant to deciding how to handle her finances or retain that information. … I admit that some of the money was used for my own benefit but only with my aunt’s permission.”

  As regards Miss Buckley’s capacity, I am satisfied that she is incapable of revoking the LPA herself. I accept the opinion of the Court of Protection Special Visitor, Dr Andrew Barker, who stated:

“She was unable to understand the nature and effects of an LPA to a sufficient degree or to choose an attorney, was not aware of her financial dealings and could not recall detail sufficiently well or concentrate long enough to weigh information in the balance to come to decisions about an attorney or to direct or instruct an attorney.”

 

 

This is what Miss Buckley’s friend Shirley said

“I am so worried that (Miss Buckley’s) money will get stolen and that she won’t be able to stay in the nursing home. I have been asked not to get in touch with C both by social services and by the police. I find this very difficult. I must have given two years of my full attention – selling her house for her – setting up the Nationwide to pay the (nursing home) monthly. Finding a decent retirement residence (from which she had to move for health reasons) then I found her the nursing home but it’s nearly £1000 per week. She cannot afford for her money to be taken. She needs every penny.”

 

Very very true. A shame that C could not see things in that light at all.  I hope that she and the reptiles are very happy together.

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