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Can a foreign conviction establish threshold in care proceedings?

I already know that regular reader David Burrows is going to love this case.

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1118.html

W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 (05 August 2022)

This is an appeal, by a man named MH (mother’s husband) against a decision by the High Court that his conviction for sexual offences against a child in Spain would stand as presumptive evidence of proof of the facts underlying the conviction in an English Court dealing with care proceedings. That is, that in order to rely on those facts the Local Authority didn’t have to go and prove those allegations again.

It seems at first instance a peculiar appeal, because the common sense answer would seem to be, yes, of course the foreign conviction can be relied upon.

But we go back to both a 1943 road traffic accident claim and some 1968 legislation to look at it, and the issue doesn’t ever seem to have come up before.

The 1943 road traffic accident claim is Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 a Court of Appeal decision. The plaintiff was suing the defendant for a road traffic accident and wanted to rely on the defendant’s conviction for dangerous driving. The Court of Appeal ruled then that as they were two separate incidents, the conviction in the criminal court carried no evidential weight as to whether the defendant had been negligent in this case and that if the plaintiff wanted to rely on it, the civil Court would need to look at the facts of the conviction and reach its own decision. I.e that a conviction or finding in another Court did not prove the fact in the second Court.

This was then reviewed by the Law Commission, arising in the Civil Evidence Act 1968, which provides at s.11 that in any civil proceedings the fact that a person has been convicted of an offence by any court in the United Kingdom shall be admissible for the purpose of proving that he committed that offence,

Job done?

Well, no, because the Civil Evidence Act 1984 did not make the same provision for convictions overseas or findings by another Court short of conviction.

However, the Law Reform Committee in its Fifteenth Report (“The Rule in Hollington v Hewthorn”, Cmnd 3391, 1967), did not recommend the abolition of the rule in relation to findings made in civil proceedings, nor its abolition in relation to foreign convictions. At paragraph 17 they said:
“We have restricted our recommendation to convictions by courts of competent jurisdiction in the United Kingdom. We do not include convictions by foreign courts. This is for practical reasons. The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. The relevance of the foreign conviction to the issues in the English civil action could not be ascertained without expert evidence of the substantive criminal law of the foreign country. Its weight could not be judged without expert evidence of the procedural law of the foreign country and reliable information as to the standards of its courts. There are, of course, many countries whose standard of the administration of criminal justice is as high as our own, but there are others in which one cannot be assured of this. It would be invidious to leave the admissibility and weight of a foreign conviction to the discretion of an English judge unfamiliar with the legal system and standards of criminal justice of the foreign country concerned. Furthermore, the burden of showing that a foreign conviction was erroneous would be difficult, perhaps impossible, to sustain, since there would be no way of compelling the witnesses in the foreign criminal proceedings to attend to give evidence in the English courts. The practical effect of making foreign convictions admissible might well be to make them conclusive and the remoter the country in which the conviction took place the more difficult it would be to dispute its correctness”.

So the Court of Appeal had to decide the point – is Hollington v Hawthorne 1943 binding on the family Courts – which means findings from other civil courts or foreign convictions would not be of themselves proof that the matters underlying those decisions were proven

I’ll add that MH had received a 5 1/2 year prison sentence in Spain for his sexual offence against a child, and the Court of Appeal had this to say on the implications of simply ignoring that or demanding that the allegations be proved again in the English courts.

One checklist factor is any harm which the child has suffered or is at risk of suffering. This calls for a risk assessment in the light of findings of fact arrived at in the normal way, with the burden of proof being on the party seeking a finding to prove it on a balance of probability. The obligation to take account of all the circumstances means that the court is not confined by the way in which the parties put their cases. Provided procedural fairness is observed, it has complete control of the process, which is aptly described as quasi-inquisitorial.
The proviso concerning procedural fairness is of course important. Natural justice and Art. 6 ECHR sound as clearly in family proceedings as in any other context. At the same time, there will be circumstances in which perfect fairness to all parties cannot be achieved and the court must protect each competing interest to the greatest possible extent, having regard to the purpose of the proceedings themselves. The rights and interests of the child will generally predominate where they conflict with the interests of others, but there is always a balance to be struck.
The present case offers a clear illustration of this tension. The central issue is whether MH poses a sexual risk to children. The incident that led to the Spanish conviction is the lynchpin of the local authority’s case. MH accepts that he was convicted but says that he was not guilty. He also argues that his trial (at which he and the child gave evidence) was unfair in a number of ways. He has produced a certain amount of documentation surrounding his conviction and more may be available by the time of the final hearing. However, the question of admissibility cannot turn on the attitude of the parties or the availability of surrounding information and the matter must be approached as if this was a bare conviction.
Accordingly, when the case is finally heard there are two possibilities. The first is that the conviction is not admitted and the local authority is required to prove the allegation of sexual abuse as if there had been no conviction. That may be impossible, given the length of time that has passed, and in consequence the threshold may not be crossed with the result that the proceedings would founder. The second possibility
is that the conviction is admitted, with MH having the opportunity to persuade the court that it should not rely upon it; again, that may not be easy. It is therefore necessary to select the outcome that is more consistent with the purpose of the proceedings themselves.
Family proceedings involve a fact-finding element, on the basis of which assessments and decisions are made. In care proceedings, proof of the significant harm threshold is a precondition for the court to exercise its powers and it has been said that, while the proceedings overall are essentially inquisitorial, they are necessarily adversarial in that respect: Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5; [2013] 1 FLR 1250 at [70] (Sir James Munby P). However, the fact-finding element of the process cannot be isolated from the welfare decision it informs. In this respect the position differs from other kinds of civil proceedings, as reflected in the respective procedural rules. The overriding objective under the Civil Procedure Rules is to enable the court to deal with cases justly and at proportionate cost, while under the Family Procedure Rules it is to enable the court to deal with cases justly, having regard to any welfare issues involved.
The characteristics of family proceedings therefore speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction.

Going on to the law

Conclusions

The rule in Hollington v Hewthorn does not apply in family proceedings as I have defined them because such a rule is incompatible with the welfare-based and protective character of the proceedings.
In family proceedings all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence.

The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive and it will be open to a party to establish on a balance of probability that it should not be relied upon. The court will have regard to all the evidence when reaching its conclusion on the issues before it.
In this case the judge was right to find that the conviction of MH is plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible. As Leggatt J said in the civil context of Rogers v Hoyle at [27], the modern approach is that judges can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. This is all the more so in family proceedings, where exclusionary rules such as estoppel, res inter alios acta and Hollington v Hewthorn do not apply because they would not serve the interests of children and their families or the interests of justice.

As I have said, while it might be possible to distinguish the present case from Hollington v Hewthorn on the basis of identity of issues and lack of unfairness to third parties, it is unnecessary to found the analysis on these narrower and more contestable matters that depend on identifying the true ratio of the decision. Nor do I attach special significance to the inquisitorial nature of the proceedings. The important consideration is not that family proceedings are inquisitorial in form but that they are welfare-based in substance.
The outcome is not unfair to the mother. As the judge said, she is not in a position to give evidence that is relevant to the conviction. It is not conclusive and she will have an opportunity to examine any surrounding evidence.

On the basis that the conviction was admissible, the judge was right to admit it. Indeed there could have been no good reason to refuse. She asked whether it was appropriate to depart from Hollington v Hewthorn, but as she had held it to be both inapplicable and distinguishable, the real question was whether there was some other reason to exclude the evidence, and there was none. Accordingly the question of comity is not relevant, while the circumstances of the original finding or conviction and the difficulties of proof in an individual case are matters for the court to keep in mind when it comes to weigh the evidence as a whole.
Once a conviction is admitted it inevitably becomes evidence with presumptive weight, otherwise there would be no purpose in admitting it. It would be meaningless to treat it as “just another piece of evidence”. Further, the court’s power to reopen its own findings has no application to the question of how the findings of other tribunals should be treated.
For these reasons, which are similar to those given by the judge, I would reject each of the grounds of appeal and dismiss the appeal.

and Lord Justice Bean said:-

Peter Jackson LJ has given in his judgment a compelling analysis of why a foreign conviction should, as a matter of principle, be admissible and given presumptive weight in proceedings under the Children Act 1989; and why there is nothing in Hollington v Hewthorn which requires us to hold otherwise. I agree with him entirely, and I too would dismiss the appeal.
As to the point of principle, no one in this case has argued that MH’s conviction in Spain should be conclusive. But the suggestion that it should not even be admissible is alarming. It is not difficult to imagine a care case in which a relevant party has been convicted of a serious sexual or violent offence in a foreign court, but the English court has no independent evidence of the facts on which the conviction was based. It cannot be right that in such a case the family court in England and Wales deciding issues relating to the welfare of children should have to ignore the conviction and somehow pretend that the relevant party is of entirely good character and that the offences of which he was convicted never happened.
As to the rule in Hollington v Hewthorn, in their 1967 report the Law Reform Committee observed that “rationalise it how one will, the decision in this case offends one’s sense of justice”; and that “it is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right”. They made recommendations in respect of convictions by UK courts which Parliament promptly enacted in the Civil Evidence Act 1968. However, in paragraph 17 of their report, cited above by Peter Jackson LJ, the Committee recommended no change to make foreign convictions admissible.
It is unnecessary for us in this case to decide anything about the admissibility of foreign convictions in English civil courts. In civil proceedings the doctrine of precedent may require this court to follow Hollington v Hewthorn without question, even though in Hunter v Chief Constable of West Midlands [1982] AC 529 at 543 Lord Diplock (with whom the other members of the House of Lords agreed) said that it “is generally considered to have been wrongly decided”. But for my part I suggest that, half a century on, the reasoning in paragraph 17 of the Law Reform Committee’s 1967 report requires re-examination. Either the surviving effect of Hollington v Hewthorn as a whole, or (more narrowly) the question of the admissibility of foreign convictions in English court proceedings, would be a very suitable topic for consideration by the Committee’s successors, the Law Commission of England and Wales, either on a reference by the Lord Chancellor or as part of the Commission’s next Programme of law reform.

Pitiless detail

This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.

That’s always a bit of a vexed question, so any case on the point is always interesting.

In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’

Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought

In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)

The Local Authority sought a 5 day fact finding hearing.

Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192[2021] 4 WLR 106 

The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.

Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary

“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(Emphases added)

(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)

Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.

Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)

“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.

(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”

Mostyn J went on to consider the facts of the case.

The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood
.

B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.

C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.

D: VW has an extensive history of deliberate self-harm spanning from the age of 12.

E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.

F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.

G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.

H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.

I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.

J: VW falsifies signs and symptoms in order to mislead and manipulate medics.

K: VW is dependant on opioids.

L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.

M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.

N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.

O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.

In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted

Lacking / unreliable / generally weak

This is a case determined by Her Honour Judge McCabe – it isn’t binding authority for anything and is a fact specific case.

Given that, regular readers of the blog will discern that either the case has got some interesting quirky detail or it is a case where something has gone badly wrong. That is correct.

P, J, E-R, E-L (Children : Care Orders) [2022] EWFC 73 (28 March 2022)

http://www.bailii.org/ew/cases/EWFC/HCJ/2022/73.html

It was a set of care proceedings involving four children. The Local Authority were asking for Care Orders and Placement Orders (ie that they felt the four children should be adopted). I’m not going to go into the reasons why the children couldn’t live with the parents here – the judgment deals with it, but that’s not the significant part.

18.  Much of the time in evidence was taken up exploring the rationale behind the Local Authority’s care planning and seeking to put ‘flesh on the bones’ thereof.

19.  Given the very stark difference of opinion between the Local Authority and the Guardian, and the fact that the social worker went off sick after the first day of the hearing, it became necessary to seek to look further up the ‘food chain’ to consider whether the Guardian’s concerns might be taken on board by the Local Authority. I ended up directing the head of services to attend on what should have been the final afternoon at a time when I should have been giving judgment in this case.

20.  If I say that the Local Authority evidence has been lacking / unreliable / generally weak, I am afraid that that would be an understatement.

The Local Authority plan at the start of proceedings was that they wanted to place all four children together, but that if they couldn’t manage to find a placement for all four children together that they would be instead in two placements of two children each.

Something so fundamental as to how to divide the four siblings into two groups of two if they are not to be placed together. The care plans submitted placed the children in a particular format of two groups of two. The ADM documents placed them in a different two. When asked why this was, in her oral evidence the SW started by saying that it was a typographical error. She then went on to acknowledge that it wasn’t, it had in fact been her view that the middle two should be together and the oldest and youngest together due to the strength of relationship of the middle two, and that this had been a well considered plan, due to the nature of the relationship that they had. This had then changed when the team manager assessed the documents.

  1. Now I am told, in the team manager’s witness statement, that indeed it had been a typo, never picked up in the court documents. That it is a typo is confirmed by the ADM in his statement.
  2. It is not far short of bewildering to try to follow the Local Authority’s care planning in this case. The together and apart assessment, which the team manager and the ADM in his recent statement, confirm that they relied on in their decision making, was accepted by the social worker in her evidence (quite rightly, in my view) as being an assessment that is “fundamentally flawed”.

Obviously typographical errors do get made, and that’s unfortunate with something so important, but the Court was put in a very difficult spot here – there were effectively two different plans as to how to place the children separately – the social worker’s evidence was originally that this was purely because of a typo, but then that it was not a typo but that she had been overriden by her manager and that her assessment of how the children should be placed based on her knowledge of them had been overruled.

Now, frankly this does happen sometimes. Social workers do not work in isolation – they do have managers and senior managers, and sometimes the views of those managers does overrule the social worker. But it seems that there was not candour about this. Two differing explanations were given.

By the end of the case, the Local Authority had abandoned the plan for all four children to be placed together and was presenting instead the proposal that two placements be found, each caring for two children. (I can’t establish with precision whether this proposal was the one in the care plans, or the social worker’s view that the eldest and youngest be placed together and the middle two placed together)

I directed that the head of services should attend Court for 2pm on the last day of the trial so that investigation and explanation could be provided. I was rewarded by the team manager physically attending at 3pm. By 5pm the Local Authority was absolutely no further forward in being able to explain what therapeutic intervention would be made available and when. The head of service had declined to attend via Teams (I having been told earlier in the afternoon that she was available to attend remotely ‘from 4pm’) but then attended at 5.05pm and, in fairness, immediately appeared to understand the severity of the situation.

There then followed an ‘emergency’ statement from the team manager that came in after the close of the oral evidence, making efforts to put flesh on the bones in justifying the Local Authorities’ care planning. I’m afraid that I did not find this to be an impressive piece of evidence. It repeated the various platitudes (examples being: it is best to place siblings together if you can, adoption provides the most permanent sort of permanence and so forth) but I’m afraid that it took me no further in truly understanding these particular siblings and their particular needs.

The judgment sets out the evidence given by the Guardian in some detail

When she was recalled to give evidence on the final day, the GAL said this:

  1. “It’s really difficult to say it without saying it: the lack of appreciation from the trust as to what these individual needs are for the children and the lack of ability to reflect on what we’ve heard and take into account both now and in longer term….
  2. The landscape as to what has been progressed by LA and put remains confusing, I’m confused, I don’t know what the Care Plan is, I don’t understand contingency measures. I don’t know how court can make final orders and trust can be trusted to execute those Care Plans properly…..

I’ve never been in this position ever as a GAL, I wouldn’t feel I am executing my roles to the children if I allowed the care plans to be signed off now…..

  1. Concerns me we’ve had these proceedings running now for almost two years, the children have been represented by me, a solicitor, significant oversight from a number of professionals, should have been concluded last week, with decisions that appear to be made off the hoof, knee jerk decisions, with long lasting outcomes for the children…..
  2. No confidence that the Care Plans we are being provided with on rolling basis are right”
  3. She talked of an atmosphere in the case of confusion and said this:
  4. It’s massively concerning the state of the evidence and how its been presented to the court, even now today, the trust don’t seem to have a proper understanding of what the children need moving forwards…..
  5. Less than 40 minutes ago, the plan changed from placement all four together, to the parallel of two and two……
  6. It’s confusing and I think the court needs proper evidence before it is in a position where trust is given to professionals to ensure the childrens’ needs are properly met in the longer term. Options extremely limited……
  7. I’m not happy, I’ve known these children long enough to know they deserve what’s right for them, not confident that the Care Plans meet their needs”
  8. It should be noted that all of this was said at a time when it was necessary to recall the Guardian to give evidence after having a further morning of evidence from the team manager who had had to prepare a statement of evidence over the weekend.
  9. The way in which this case has proceeded is, in my judgment, wholly unacceptable. These are applications for placement orders for four children. The parents, each of whom have their own mental health vulnerabilities, oppose the applications. They should not be having to react, with their Counsel, to ever changing plans and evidence served last minute. It is difficult to understand how it is that these proceedings can be so heavily delayed and yet come into Court in such poor order, and as I made clear at various points during the hearing, this could not have been rendered more painful and difficult for the parents had it been deliberately designed that way. Having said that, I ensured that time was given at each stage that it was necessary, and I am satisfied that the parents have in fact had a fair and full hearing. It was unfortunate, however, that parents who are facing the permanent loss of four children, had to endure and listen quite so much and wrangling between professionals.

The Guardian made an application for an independent social work assessment to carry out the social work assessment of the children’s needs and relationship dynamics to inform how the children should be placed.

  1. The Guardian has made, after the close of the evidence, an application under part 25 for a further assessment. She considered that this was necessary because somebody independent was needed to carry out, in blunt terms, the work that the Local Authority should have done and that she no longer trusted that they would do. She believes that there needs to be a proper assessment of the needs of J and P, whether they should be placed together or apart, whether they should be placed for adoption or long term foster care, what their therapeutic needs are and how they can be met, by whom and when.
  2. I have found this difficult to wrestle with. On the one hand, I completely understand why the Guardian has felt compelled to make this application. Such ‘analysis’ of realistic options as could be found from amongst the thousands of pages of evidence in this case was woefully inadequate. That much the team manager, in fairness, accepted. For these two children, on the very cusp of what would be considered an ‘adoptable age’ and with marked behavioural difficulties, and difficulties in their own relationship, the welfare analysis carried out by the Local Authority should have been exquisitely sensitive and absolutely focussed on the individual characteristics of the children.
  3. Instead, what the Local Authority provided was little more than the usual platitudes of ‘adoption provides the best permanency’ and ‘siblings should be raised together’. I am afraid that, even after the additional statement of evidence of the team manager, things did not get much better. I agree with the Guardian that the care planning, when a limited concession was finally made at Court, could be described as ‘knee jerk’.
  4. I understand why there is so little trust in the Local Authority by the Guardian.

The Court did not grant that assessment – the Court made Care Orders and Placement Orders for the youngest three children, but determined that the eldest child P should be placed in long-term foster care rather than adopted.

I make some concluding remarks. This case has been extremely difficult and almost impossible to ‘keep on track’. It has taken the strenuous efforts of the Guardian, Counsel for the Guardian, and the Court to ensure that the case proceeded in a proper manner, to the extent of the Head of Services for the Local Authority having to be summoned to Court at 5pm on a Friday afternoon.

  1. This should never have been necessary and was only made necessary because of the almost absence of proper, responsive, careful planning by the Local Authority. The Local Authority’s advocate was, at some points, left with nobody at all at Court to assist her or give her instructions, and at times with nobody from the Authority even listening in to the evidence on the Teams link.
  2. The allocated social worker, who absolutely did her best to assist the Court, had to admit that her together and apart assessment was fundamentally flawed. That evidence was given on the first day of the hearing. From that point onwards it should have been patently obvious to the Local Authority that there was a real issue with their care planning and that careful consideration needed to be given to the complexities of the sibling relationship and their individual needs. Instead, the Local Authority remained doggedly fixed with its original care plan, providing generic reasoning only in its defence, and failing to see the complexities and nuances of the case.
  3. In the end I have made orders that could be considered to be fairly predictable and reasonably uncontroversial on the facts of this case. They were the orders initially being suggested, for very good reason, by the childrens’ Guardian, and had the Local Authority been able to bring a more responsive, thoughtful, flexible eye to what was happening in Court the proceedings could have been much shortened and the parents spared having to listen to lengthy arguments amongst professionals about how care planning for their children should or should not be undertaken. I very much hope that this will not have to happen again.

More heat than light – appeal on recusal

This is an appeal from a decision of Keehan J not to recuse himself for future hearings following what was on any description a very challenging interaction between Judge and counsel.

When I first thought about writing this post my intention was to try to be studiously neutral – I obviously wasn’t in Court, I didn’t hear the evidence, I haven’t read the full transcripts or heard them, and these matters were clearly highly contentious. Also, because both Judge and counsel are named, I did not want to be disrespectful to either of them on what was clearly a situation that was heated and became even more heated as things went on.

I have reconsidered slightly, and I think that I will just give my quick view that I think things got badly out of hand and that there were faults on both sides but with the benefit of being removed from the case in time, stakes and no connection to it I think the Judge reacted badly to some provocative remarks both orally and in writing BUT that as one of the episodes of counsel/Judge conflict did lead to the evidence given by a witness being potentially affected, I think the Court of Appeal COULD have allowed the appeal, but weren’t wrong to refuse it.

Deep breath.

Re AZ (A Child: Recusal) 2022

https://www.bailii.org/ew/cases/EWCA/Civ/2022/911.html

The background of this case is complex and difficult. Effectively, the mother and father entered into a surrogacy arrangement and a child, A resulted from that. The clinic had kept some of father’s gametes, and it was later found that by way of deception on the mother’s part, those gametes had been released to her in order to enter a second surrogacy arrangement unknown to the father, which produced twins.

There had been quite a lot of litigation, and serious findings had been made against the mother in relation to the conception of the twins and her honesty whilst giving evidence in those proceedings. The mother made allegations of domestic abuse against the father which the Judge found not to be true and that she had been dishonest in her evidence about these matters.

The parents had separated and a decision was made by the Court that A was to live with his father. The mother then made an application for Child Arrangement Orders for the twins, not mentioning in her application the adverse findings made by Keehan J in A’s proceedings.

The mother made complaints to the police about the domestic abuse (subsequent to the findings that they were not proven, and not mentioning those findings) and similarly about the father who was a doctor to the General Medical Council.

A five day hearing took place in August 2021. The mother sought at the outset an adjournment of the hearing on medical grounds. It was finally agreed that she would give evidence remotely.

Counsel instructed for the mother, Mr Uddin, had prepared a position statement in support of her application to withdraw.

In the course of summarising the circumstances in which his client’s medical condition had come to the court’s attention, counsel included the following observations:
“The application for an adjournment is made by the respondent mother with some trepidation. The mother feels that this court will use against her any application for an adjournment.”
“It is apparent that the court due to issues at previous hearings has a distrust of the mother and to put it bluntly prima facie disregard for the mother’s position.”
“It is one thing for the court to deny the mother to vary an interim contact order but another to disregard her application for an adjournment.”
” …she had ignored her own health conditions to avoid a delay in these proceedings and her weariness of this court due to her previous experience before this court.”
“The subsequent treatment of the mother by the court after her cancer disclosure has solidified mother’s weariness of this court.”
“It is true the mother has raised questions about the conduct of the court at previous hearings, but it would be unfair and unjust for the court to use this against the mother which the mother feels the court is doing.”

In the early stages of the hearing, the Judge made some remarks in relation to this document.

The transcript of the hearing shows that almost immediately after the start of the hearing, the following exchange took place:
“Judge: Yes, Mr Uddin?
Counsel: May it please you Lordship, my Lord —
Judge: It does not please me, actually, because I consider your position statement to have been impertinent and impudent and I should tell you now that if you ever dare file a position statement like that before me again, I will consider reporting you to the Bar Standards Board. Do you understand?
Counsel: Thank you, my Lord. My Lord, the position statement was done on instructions from my client
Judge: Yes, I am sure it was.”

The second most serious matter occurred during the Guardian’s evidence.

This instance is described as “bullying and threatening the Appellant’s counsel with the Bar Standards Board on the 27th August 2021”. As all parties recognised, this was the most troubling incident during this difficult hearing. In argument before us, Ms Ancliffe placed particular weight on it in support of the appeal.
The background to this incident is a passage in the evidence given by the children’s guardian at the end of the previous day’s hearing. During questions from Mr Wilson on behalf of the father in which he was challenging the need for a family assistance order, the guardian had described the relationship between the mother and A as “so special and so close” and continued:
“I think we’re looking hopefully at a new chapter in this little boy’s life, one where he can resume a positive relationship with his mother and learn about his siblings. All of these things are really important for A, for his sense of identity. He must have suffered trauma and loss losing his mother out of his life and all of his extended family, to whom he was very close and, again, I’ve observed that personally on more than one occasion. So, to have that back in his life would just be so good for him and I think the CAFCASS officer could assist with that.”
On the following morning, shortly after Mr Uddin started his examination of the guardian, the following exchange took place:
“Counsel: Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind—-
Judge: If [the guardian] said that, I did not hear it.
Counsel: Well, I did– I prefaced it, my Lord, with the “If I have misquoted you, please correct me.”
Judge: Yes. All I am saying is I do not recall her saying that.
Counsel: Well, my Lord, she (inaudible). My Lord, I am asking a question but I did preface it and said, “If I misquote you.” What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?
Judge: Well, she did not say it.
Counsel: Well, let us hear what she says then, my Lord.
Judge: Do not talk to me like that.
Counsel: My Lord –
Judge: You carry on and do what you want.
Counsel: Well, my Lord, how could I do anything I want? I am in your Lordship’s court.
Judge: Yes. It would be helpful if you could remind yourself of that. Now ask the question.
Counsel: Well, no, my Lord. I—-
Judge: Ask the question.
Counsel: Well, I want– I think we need a five-minute break because I do not like being spoken to like this. I am an officer of this court. I deserve respect. Your Lordship comes into this court and we all stand up because we show respect and I am an officer of the court. I will not—-
Judge: No you are not —
Counsel: (inaudible)
Judge: –an officer of the court. You are not a solicitor. You are a member of the Bar.
Counsel: Well, my Lord, I—
Judge: I am not wasting any more time. Get on with your cross-examination.
Counsel: My Lord, I will make one further point. This is my workplace. This is my workplace, just like your clerks and—-
Judge: Will you please just get on with asking your question?
Counsel: I will but can I have it affirmed from you that you will not talk to me in that way?
Judge: If you speak to me respectfully, I will speak to you respectfully.
Counsel: My Lord, I apologise if I have come across in any way disrespectful but this is my place of employment and I will not be spoken to in that way by anybody. When I have employees, I never speak to them in that way.
Judge: You are getting yourself close to being reported to the Bar Standards Board. Now please just get on with your cross-examination.
Counsel: May I ask that same question again or not?
Judge: Certainly.
Counsel: Yesterday – please correct me if I misquote you in any way – my understanding was that A suffered trauma when he was moved away from [the mother], away from the extended family and her. Am I quoting you right or am I misquoting you?
Witness: I think you’re probably misquoting me. I don’t remember using the word “trauma”. I’m not saying A wouldn’t have suffered trauma but I don’t recall saying that in evidence yesterday.
Counsel: Okay. Well, I did say– I said in fact– I had a note of “trauma” and I will– I stand to be corrected. Did you use the word “traumatic” then or– can you recollect?
Witness: I can’t recollect, I’m sorry.
Counsel: All right then. Well, then, in that case, in relation to the upheaval, how do you think that has affected A?
Witness: I think A because of his age would have been confused about the changes that took place moving from one residence to another residence. He already had formed a good relationship with his father so it wasn’t as though he was going some– with someone he didn’t know. The environment would have been slightly different but, yes, I think it– because he’s preverbal and explanations couldn’t really be given to him as to what was happening in his little life, you know, I think he would have been confused.”
The guardian’s evidence continued. A little later in the morning, following a short adjournment for unconnected reasons, Mr Uddin addressed the judge in these terms:
“My Lord, if I may be permitted to make this personal statement which is recorded here, in these proceedings today was the second time your Lordship has threatened me with the Bar Standards Board and I am concerned whether my client is losing confidence in me and whether I can continue. However, having spoken to my client, she has not lost confidence in me. I will continue with this case but, my Lord, I totally appreciate these kind of cases are not easy for anyone concerned, even your Lordship. These are dealing with the souls of people and, my Lord, I am also a human being with blood and salt running through my veins and if there is another threat, my Lord, I am going to have to consider– I totally accept, if I am in any way inappropriate, then your Lordship should admonish me so, on that basis of that understanding, my Lord, I am going to continue. I feel my client has not lost confidence in me and I can carry on. I just wanted to put this marker down, my Lord. May I continue?”
The judge did not respond to this statement. Counsel resumed his examination of the guardian. There were no further episodes of conflict between him and the judge.

It was submitted on behalf of the mother that this incident would lead a fair-minded and informed observer to consider that there was a real possibility of bias for several reasons. First, the judge’s initial intervention was wrong and unfair. Counsel’s recollection of the guardian’s evidence the previous evening was correct: she had referred to trauma. Secondly, the judge lost his temper with counsel and addressed him in a way that amounted to bullying. Thirdly, counsel was clearly unsettled by the way in which the judge addressed him and asked for an adjournment, which the judge refused. Fourthly, the judge’s renewed threat to report him to the BSB was unjustified and wrong. Finally, the effect of the intervention was that the guardian wrongly said that counsel had misquoted her. The judge’s intervention therefore materially undermined the evidence.
In response, Mr Wilson acknowledged that the judge’s comments during this exchange may be the most troubling. He pointed out that counsel’s summary of the guardian’s evidence the previous day was not precisely accurate. He did not seek to defend the judge’s reference to the BSB. He added, however, that, following this exchange, Mr Uddin had continued to cross-examine the guardian for an extended period recorded over a further 21 pages of transcript, during which there were further respectful and productive exchanges between judge and counsel. This was one incident over a five-day hearing and, in evaluating the question of apparent bias, a fair-minded and informed observer would have regard not just to this moment but to the whole hearing in the context of the overall proceedings.
In his written submissions to this Court, Mr Bowe informed us that, having carefully considered the transcript, the guardian could see that counsel’s question did not strictly reflect the evidence that she had given the day before in that she had not said that A had suffered trauma “when he was moved away” from the mother to the father but rather that A must have suffered trauma having lost the mother and his extended family. He added, however, that the guardian’s perception was that the judge unexpectedly shouted at counsel when telling him not to talk like that, causing counsel to request a five-minute break and that the style of the intervention, taken in combination with the previous admonition and reference to the BSB on 25 March, resulted in what Mr Bowe called a somewhat freezing effect on counsel. He also noted that the effect of the intervention was to cause the guardian to doubt her previous evidence and potentially deprive counsel of the opportunity to explore the issue of “trauma” more fully on the mother’s behalf. For those reasons, it was his submission that a fair-minded observer would consider that instances (3) and (8) together do amount to apparent bias.

The Court of Appeal had to consider whether the judicial tests for recusal (i.e that this Judge would not hear this case again) were met and whether the Judge had been wrong to refuse the application to recuse himself.

Obviously, any application for recusal is very difficult. You are, on instructions, having to apply to the Court to say to them that your client does not consider that they have been fair and that they cannot decide the case fairly in the future. Nobody really wants to say that to a Judge, and probably no Judge really wants to hear it. There is a balance to be struck between the duties to fearlessly represent your client but also to have respect towards the Court, and it can be a very difficult tightrope to walk.

The Court of Appeal said this

In this part of the case we are concerned with alleged bullying of counsel by a judge. Where it occurs, judicial bullying is wholly unacceptable. It brings the litigation process into disrepute and affects public confidence in the administration of justice. However, it inevitably remains the case that situations of conflict between bar and bench will sometimes arise. In that connection we make the following points.
First, counsel are sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing. Judges should, and almost always do, appreciate that this is a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regard it as ill-founded. However, respect goes both ways. It is important that any such objection or criticism is expressed, however firmly, in a professional way. Most judges nowadays conduct hearings in a less formal manner than may have been usual in earlier generations, but that is not a licence to disregard the particular position of authority which they necessarily enjoy.

Second, trials are a very intense environment. Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had had time for reflection – whether in the context of an exchange with the judge of the kind discussed above or more generally. Judges should, and almost always do, recognise this. Many such lapses can simply be overlooked or corrected with a light touch.
Third, there will nevertheless be occasions when counsel’s conduct requires explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke is proportionate and delivered in measured terms, without showing personal resentment or anger. Even a merited rebuke may be unsettling for counsel; and it may also, even if unjustifiably, have an impact on the confidence of their client in the fairness of the hearing. That said, some such impact may be unavoidable, in which case it has to be accepted as a consequence of counsel’s behaviour.
Fourth, a statement by the judge that they are considering referring counsel to the BSB is a particularly strong form of admonition and is accordingly particularly liable to have an adverse impact of the kind referred to above. For that reason, we believe that it will rarely be appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course will be to wait until the end of the hearing, which will avoid raising the temperature more than is necessary and will also mean that the judge can evaluate counsel’s conduct in the overall context of the hearing. In the rare case where an allegation of professional misconduct does have to be raised in the course of a hearing, the situation will require sensitive handling and the judge will be well advised to take time to consider carefully when and how to raise the matter.
Finally, since judges are human, and (as Black LJ observed in Re G, supra) hearings can be challenging for them as well as for counsel, they will sometimes lapse from these high standards, and incidents will occur which the judge should have handled better. But such lapses do not necessarily amount to bullying; still less does it necessarily follow that in such a case the hearing will have been unfair or that the judge should recuse themselves from any further involvement. On the contrary, it is fundamental to the culture and training of a professional judge that they will decide each case according to its objective merits. If judge and counsel rub each other up the wrong way, whether or not it is the fault of either or both, that can be, and almost always is, put to one side in the decision-making process. Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench, even if they may believe it to be unjustified.
We should add that although the mother’s reference to bullying requires us to consider the judge’s conduct, the dispositive question on this application is not whether he was guilty of misconduct in relation to either instance but whether his conduct would give rise to a reasonable apprehension that he was biased against the mother, because of her counsel’s behaviour.

They went on

In his third judgment handed down on 15 November 2021 the judge said that parts of the position statement filed for the hearing on 25 March 2021 were “rude and impertinent”: the phrase he used at the hearing itself was “impudent and impertinent”. We might not have used those precise terms, but we agree that the passages that we have quoted from the position statement are objectionable. Although, as we have acknowledged above, there are occasions where it is counsel’s duty to accuse a judge of unfairness, in the context of the adjournment application the accusation was not only unfounded but gratuitous. It did not advance the substance of the application to say that the mother feared that it would be unfairly “disregarded” because of the judge’s previous findings, still less that she feared that he would use it against her. Those assertions did no more than vent the mother’s personal feelings about the judge’s findings (which findings were unappealed). We recognise that this may not have been an easy position statement for Mr Uddin to draft but if his response to the judge that it was drafted “on [the mother’s] instructions” meant that he thought he was obliged to make offensive imputations of this kind merely because his client wanted him to do so, that was a serious misunderstanding of his duty.
It was in our view appropriate for the judge to admonish counsel about the tone of the position statement. He also acted appropriately by doing so succinctly, and in a way that drew a line before he moved on to the substance of the application. We have to say, however, that we do not think that his rebuke was well expressed. Although it is never easy to assess how things are said from a written transcript, the words used by the judge convey the impression that he felt personally affronted: that was not appropriate. As for his mention of the BSB, it is fair to say that the judge did not say that Mr Uddin’s conduct merited a report (and we do not believe that it did) but only that he would report him if he did the same again. But it was, for the reasons set out above, inadvisable for him to mention a possible reference to the BSB in the course of the hearing.

Although we believe that the incident could have been handled better, we consider it to have been a limited incident, best characterised as an over-reaction to what was in our view a gratuitously offensive position statement.

and in relation to the cross-examination of the Guardian

As we have seen, the parties before us were agreed that instance (8) was the most serious of the instances on which the mother relied. It is important to start by analysing exactly what went wrong.
The starting point is the judge’s querying of whether in his question to the guardian Mr Uddin had accurately summarised an earlier answer she had given. The question began:
“Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind …”
It was at that point that the judge intervened to say that he had not heard the guardian say that, though a little way into the exchange he said in terms that she had not done s
o.

Because of the way things developed, the judge did not specify exactly what it was in Mr Uddin’s formulation that he believed was wrong. When Mr Uddin eventually put the question again the guardian said that she did not believe that she had used the word “trauma”. As the transcript shows, she was wrong about that, and to that extent Mr Uddin’s question accurately reflected her evidence. But it is not clear to us that that was the judge’s point. Mr Uddin’s formulation was in fact inaccurate in a different way, because it suggested that the guardian had attributed the trauma to A being moved “to the care of [the father]” whereas she had referred only to it being caused by the loss of his mother and extended family. The difference is only slight, and it is fair to say that Mr Uddin had not finished his question when the judge intervened and he may well have been going on to refer to that aspect too (as he did when he eventually put the question again); but even if so his introduction of a reference to the father arguably carried the implication that the guardian had said there was something about the father’s care that caused trauma. It may well have been this perceived inaccuracy that the judge was objecting to. In any event, at this stage there was no more than a possible misunderstanding of a kind which sometimes occurs in the course of cross-examination, and no-one is to be criticised.
Mr Uddin responded to the judge’s intervention by saying:
“What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?”
That was in our view disrespectful and impertinent. The correct response from an advocate when his recollection of the evidence is questioned by the judge is to seek to clarify the position, most obviously by establishing exactly what the issue is and asking that the judge’s note be compared with those of counsel and solicitors. His further response “Well, let us hear what she says then, my Lord” also has a confrontational ring, at least as it appears in the transcript.

Thus far the criticism is entirely of Mr Uddin. But it is clear that his disrespectful response (or responses) caused the judge momentarily to lose his temper. Even without the tape, it is plain that his response (“Do not talk to me like that”) was angry – and that is confirmed by the guardian’s recollection recorded at paragraph 121 – and his replies in the course of the following exchange, culminating in the observation that Mr Uddin was coming close to being reported to the BSB, show that he did not immediately recover his poise. That exchange in its turn clearly unsettled Mr Uddin and caused him too to become heated – “I deserve respect”, “can I have it affirmed that you will not talk to me in that way?”, “I will not be spoken to in that way by anybody”. Although the judge tried to close the incident down and return to the evidence, Mr Uddin would not at first do as the judge asked. He requested a break, which the judge refused. Although Mr Uddin resumed his questions to the witness, he obviously remained troubled, hence his “personal statement” a few minutes later.
This was clearly a regrettable incident. It was started by Mr Uddin’s disrespectful response or responses, for which the judge was fully entitled to admonish him. However, the way that the judge did so raised the temperature and clearly unsettled Mr Uddin. With the benefit of hindsight, we believe that he should have taken up the suggestion of a short break for “cooling-off”. Instead, he warned Mr Uddin that he was getting close to being reported to the BSB. We have already observed that it is generally inadvisable to warn of the possibility of a reference to the BSB in the course of the hearing, and that was particularly so here when feelings were running high.
Miss Ancliffe submitted that the judge’s intervention had led the guardian to wrongly disavow her earlier reference to A having suffered trauma by having been moved from her mother’s care. That may be the case, even though the judge himself did not focus on that word, but it is in truth impossible now to know. Ultimately, it does not matter. We are not concerned as such with the effect of the judge’s intervention but whether the incident to which it led gives rise to a reasonable suspicion of bias on his part. However, we should say that we do not consider that the guardian’s revisiting of the issue had a material impact on the outcome. She was a professional witness well able to express her considered opinion and her subsequent answer, set out at the end of paragraph 117 above, described in more precise terms how A had been affected by the move from the mother.

CONCLUSION ON INSTANCES (3) & (8)

It will be seen that we have some criticisms of the judge’s response in relation to both these instances, and in particular instance (8). However, the question on this appeal is whether what he said on those occasions would lead a fair-minded and informed observer to consider that there was a real possibility that he was biased against the mother. We do not believe that it would. In neither case was his conduct gratuitous: on the contrary, he was reacting, albeit inappropriately, to disrespectful conduct on the part of Mr Uddin. These were two short-lived and isolated episodes in separate hearings, the second of which lasted several days. They are just the kind of incident which may arise in the course of highly-charged proceedings but which, as we have said above, a professional judge will put to one side when assessing the merits of the case. As noted at paragraph 47 above, in his eventual judgment the judge said that the exchanges between him and Mr Uddin had had no effect on his decision-making. Of course that statement itself cannot be conclusive, but it is consistent with what the fair-minded and informed observer would expect of a professionally trained judge and there is nothing to suggest that it was not the case here. There is no complaint of any other inappropriate interchange between the judge and Mr Uddin. We refer also to paragraph 95 above. The mother and her legal representative were given a fair opportunity to put her case, and the mother was allowed to adduce extra evidence. At the conclusion of the hearing, the judge handed down a judgment in which he rejected a number of the proposals put forward by the father. All the evidence is that the judge reached his conclusions following the August 2021 hearing in a fair and balanced way, and there is no reason to suppose that he would not do so in the remaining stages of the case.
Having been critical of some of Mr Uddin’s comments, we should record our impression that, despite the evident professional difficulties he was facing, he represented his client tenaciously and effectively.
OVERALL CONCLUSION

In relation to both groups of instances, we have concluded that they would not lead the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother. For the avoidance of doubt, that remains our view if all seven instances are considered cumulatively. It is for those reasons that we concluded that there was no basis on which the judge should have recused himself and that this appeal should be dismissed.

(As a sidebar to the case, one of the grounds of appeal which did not particularly cause the Court of Appeal trouble was the claim that the Judge’s remarks during mother’s evidence of “I am writing that down” were indicative of bias, and the Court of Appeal said this:-

There is no substance in the complaint about the judge’s taking of notes or his references to his notebook during the hearing. It is entirely a matter for a judge to decide what notes to take of the evidence. Neither counsel nor anyone else in court is in any position to assess what a judge is writing down. It is not unknown for a judge to indicate to counsel that his line of questioning is not helpful by putting down his pen. This is an example of the disclosure of judicial thinking which, as Sir Thomas Bingham MR observed, is sanctioned in the English tradition. Criticising a witness’s answer, and recording the criticism in his notebook, is a legitimate expression of scepticism which, to use Sir Thomas’s words, “is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be”. In this case, the judge’s references to the notebook during the mother’s evidence were made in the course of appropriate challenges about her reasons for reporting allegations to the police which he had found to be fabricated.

Irresponsible sperm donor

This is a very unusual and interesting High Court case.

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/50.html

JM is a man who has been making private arrangements with women who want children to be a sperm donor for those women. He does this privately rather than through a clinic because clinics will not accept him as a donor.

They will not accept him because he has an inheritable genetic condition, Fragile X. He has assisted 15 women to have children through his donations.

He entered into agreements with the women at the time, that he would not have anything to do with the child.

Despite this, he made applications in relation to 3 children for parental responsibility and contact. In some of those cases, serious allegations were made against JM.

The Court was considering :-

  1. Whether to grant those applications
  2. Whether to make an order under s91(14) of the Children Act 1989 to bar any further applications without leave
  3. Whether to name JM in the judgment.

Obviously, the latter point is the most legally interesting.

Naming JM in the judgment

It would be an unusual step in a judgment such as this to name one of the parents. The usual approach is to anonymise the parents so as to protect the identity of the children. However, it is clear from Tickle v Griffiths that there are cases where the public interest in the naming of the parents is sufficiently great as to outweigh the risk of identification of the children and their Article 8 right to privacy.
There are strong grounds for naming JM. All three mothers and the Guardian support naming. Although JM told the Court that he had ceased to act as a sperm donor, a social media message from February 2022 suggested that he was still offering his services at that date. In the light of JM’s lack of honesty to his own mother, Mrs M, and his belief that he has done nothing wrong, he said he would be a sperm donor for any of the existing mothers so the children would have a “sibling connection”, I have no confidence that he will not act as a sperm donor in the future. I equally have no confidence in him fully explaining to any woman the true implications of his Fragile X Syndrome. There is therefore a very specific benefit in him being named in the hope that women will look him up on the internet and see this judgment.
As the Guardian suggests, there is a wider public benefit in the risks of private sperm donors being more widely known and considered. Publishing this judgment without anonymising JM raises the prospects of wider dissemination of the huge impact using JM as a sperm donor has had on these mothers.
If JM is named there is some risk that the children will be identified. However, R, P and N do not bear his surname, although B does. In any event, they are too young to be conscious of any internet comment. It is possible that they may become aware in the future of the facts set out, but it would be a sensible course for the mothers to explain the position to the children in an age appropriate way at some future date in any event.
Ms Robertson raises the negative impacts upon JM of his being named and identified as a sperm donor. I accept that there may be some negative impacts. However, JM chose to be a sperm donor despite knowing that he would not be permitted to go through a clinic. He also chose to make these applications despite the strong opposition of the mothers. There is no suggestion that JM does not have capacity in respect of these decisions. In those circumstances, the fact that JM will be identified is a consequence of the decisions he has made.
There is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents.
For all these reasons I consider this to be a case where it is appropriate to name JM.

(and now that I’ve dealt with that bit, I can tell you that the name of the case is :-

MacDougall v SW & Ors (sperm donor : parental responsibility or contact) (24 May 2022)

It would be fair to say that the Court was not impressed that James MacDougall fathered 15 children by way of sperm donation despite knowing that he had an inheritable genetic condition.

I also take into account the fundamental irresponsibility of JM acting as a sperm donor whilst knowing that he had Fragile X Syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. JM knew that he could not be a sperm donor through a clinic because of his condition. He told the Guardian that he thought Fragile X was not serious and it was for the mothers to do the research. Even if JM does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic.
Although the agreement does refer to Fragile X, JM took no steps to explain the condition to SW or EG and no steps to ensure they understood. JM took advantage of these young women’s vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, is a factor in concluding that JM should not be given parental responsibility for the children

The Court did not grant him the Parental Responsibility Orders or orders for contact, and made s91(14) orders for three years (I should note that because one of the children had social services involvement, matters in relation to that child were adjourned and although the applications related to 3 children the Court only dealt with 2 for that reason)

Very unusual for a Court to name a parent in children proceedings, it generally only happens where there are committal proceedings, but one can completely see – particularly where JM said he intended to continue being a donor, why the Court felt it was appropriate that anyone deciding to take up James MacDougall’s services should know that he is a carrier of Fragile X and that googling his name is likely to provide a link to this judgment.

If you are undertaking any sort of fertility arrangement that does not involve a professional clinic (and even some of those aren’t great – google Suesspicious Minds + Port Harcourt for example) it would be a very good idea to get some independent legal advice first. The agreements JM had drawn up for these women was, the Judge said

The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer

Brazil

This is a case about protection of a vulnerable adult, who has capacity to make a decision, but where everyone involved could see that the decision was a very very poor one, even the adult herself accepting that if a friend came to her with the same decision she’d say “of course it does not sound like a sensible plan”

EF is a girl aged 18, coming up to 19. When she was 14, she met a man GH on an online chatroom. GH was at that time 25. When she was 15, GH sent her an engagement ring and told her that they would get married. In September 2019, GH came to the UK to meet EF, and whilst in the UK he was arrested on charges of indecent images of children.

GH returned to Brazil. EF wants to go to Brazil to be with him.

The London Borough of Islington brought the case to Court, seeking under the inherent jurisdiction orders preventing her from going to Brazil.

The Court say this about GH

What is known is as follows. He is 11 years older than EF. He met her in a chat room when she was 14 and continued a relationship with her when he learnt she was 15. He admits to EF that he is addicted to pornography and has downloaded child pornography including images of very young children. He told EF that this action was linked to his addiction. He knows about EF’s mental ill health and her need for mental health support and so her vulnerability.

Of course anyone looking at this case would be very worried about EF, who is vulnerable and appears to have fallen in love with a man about whom there are significant red flags. However, it is clear that EF has capacity to make decisions for herself, even unwise ones.

The Court was driven to the conclusion that the orders sought by the Local Authority were a very significant interference with the freedoms of a person who whilst vulnerable had capacity to make decisions for herself, even very bad and unwise ones. The Court declined to make the orders (which must be right in law, though you can easily see why Islington asked for them) but also urged EF to think very carefully before making the trip to Brazil and EF had agreed to undertake some educative work before going.

Discussion
The first point to reiterate is that it is clear from Dr D’s evidence and the parties agree that EF has capacity and that therefore the court’s jurisdiction is not the MCA.
I am also mindful of the statutory principles set out in section 1 of the MCA namely that a person must be assumed to have capacity unless it is established that she lacks it and that a person is not to be treated as unable to make a decision merely because she makes an unwise one.
As EF has capacity the only jurisdiction that this court has to make the orders the LA seeks is pursuant to the court’s inherent jurisdiction but the exercise of this is carefully circumscribed as set out above and the power must be used sparingly.
Although the MCA does not apply I think the above principles apply equally in this case, namely that I should assume EF is able to make her own decisions and should not be treated as being unable to merely because she is making unwise ones.
I have considered all the cases that I have been referred but in my judgement the weight of the authorities clearly indicates that this jurisdiction should be used rarely and in any event should be facilitative and not dictatorial and that the court should not make orders against the subject of the proceedings prohibiting them from acting in accordance with their wishes.
The orders that the LA seek are dictatorial and aimed at the victim namely EF. The LA is expressly seeking to impose such decisions upon EF, namely prohibiting her from visiting or living with her partner, prohibiting her from travelling to Brazil and prohibiting her from having her passport without the permission of the court. The net effect of these prohibitions is also to stop EF from seeing GH. The LA are seeking for decisions of the utmost significance to be imposed upon EF. On that basis alone I should not make them.
If I am wrong about that and there is a jurisdiction to make such orders against victims it only exists in truly exceptional circumstances. I am not satisfied that those exist in this case. The scale of interference is significant and not in reality time limited to 6 months as it is by no means certain that in 6 months’ time the court will be in a different position as there is every chance that despite the work that EF will carry out with the LA her views will not have changed. The justification for the inference is the risk to EF’s health and wellbeing and in the worst case her life. I have already dealt with my assessment of that risk.
Moreover, EF is an adult with capacity and wants to be in a relationship with GH. She has known him for 3 years and separated from him once. She has received advice from professionals not to go and is intelligent enough to understand that advice and act on it if she so wishes. She plans to visit Brazil at least once before moving there permanently. She has saved up a reasonable sum so that she will have a degree of independence once over there. She plans to take a second mobile phone with her as another level of security. She has researched the medical and health facilities in Brazil and is aware of its shortcomings. She has agreed not to travel to Brazil until her course is completed. She has agreed to continue to work with the LA before she leaves. These are sensible decisions which show a degree of independence and critical thinking.
In addition I have very much in mind EF’s Article 8 right to respect for her private and family life which if I were to make the orders sought by the LA would be breached as she would be prevented from pursuing the relationship she wants and living the life she wants. As already stated the purpose of invoking the inherent jurisdiction in respect of a vulnerable adult should be to enhance a person’s Article 8 rights not limit them. Article 8 protects and obligates the State to “respect” both “family life” and “private life”; this includes a person’s right to live their personal life as they choose and establish and develop relationships including intimate relationships. The orders the LA seek would fundamentally breach EF’s Article 8 rights. Moreover, as already referred to, whilst the LA only seek orders for a further 6 months, such orders have been in place for 9 months already and there is a real chance and KL
accepted that in 6 months the LA’s position will not have changed and they will seek further orders.
Lastly to impose what would be a worldwide travel ban for any further period of time would be a highly intrusive step by the court would and only be justified in exceptional circumstances. I am not satisfied those exist in this case.
I am conscious of the fact that the only reason why court intervention is possible in this case to stop EF’s relationship with GH is because he lives in another continent. If EF was associating with a man who lived in London who the LA thought was unsuitable they would not be able to protect her from that save by depriving her of her liberty which step they obviously would not take.
Conclusion
This is a difficult case but I have therefore reached the clear conclusion that the court should not continue to invoke its inherent jurisdiction to stop EF from travelling to Brazil and so having a relationship with GH.
In the Court of Protection in the case of LB Tower Hamlets v PB [2020] EWCOP 34 Hayden J, VP, stated that:
” The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”
In my judgement this general principle has application in this case.
I have therefore decided to end the protective orders that have been in place.
I do that on the basis that EF has undertaken to this court that she will not travel abroad before the end of her college course on 5.07.22 and that in the meantime she will attend the proposed sessions of work arranged by the LA.
Postscript
I end this judgment with a plea to EF. I have accepted that the LA and Dr D are right to be very worried about her because I have found that there are real risks to EF’s wellbeing from moving to Brazil and living with GH.
I have concluded that the professionals in this case have EF’s best interest at heart and want to protect her and keep her safe.
The court’s view is that EF would be making a very unwise decision to move to Brazil.
I urge her to work with them between now and July when her course finishes.
I urge EF to attend all the sessions that the LA arrange for her.
I ask EF to listen carefully to the advice given and think more deeply about the issues in this case.
EF told me she would be worried if a friend of hers was about to embark on a similar trip. She needs to think about her own case as if she were that friend

https://www.bailii.org/ew/cases/EWHC/Fam/2022/803.html

London Borough of Islington and EF 2022

“You’re terminated… erm, Mister”

Oh, this is a DOOZY.

An application to terminate the appointment of a Guardian. Always interesting these, but always doomed to failure and the Court make sympathetic noises and assure everyone that no matter what they think the Guardian is independent and fair-minded and that perhaps a gentle smack on the wrist is all that is needed but the Guardian

Hold on, what?

The application was granted?

Now we’re in. Load up your sitting back and eating popcorn gif of choice (RIP Stephen E Wilihite), I like Jessica Fletcher myself. Let’s crack into it.

Care proceedings – there needs to be a sexual risk assessment of dad, LA propose that a social worker will do it. Dad’s lawyers email the LA and ask for details about the social worker’s experience in doing such an assessment. An answer was received. The father applied for an ISW, that application was adjourned.

So far, pretty normal. Dad was represented by a solicitor called Mr S. A senior partner at Mr S’s firm, Mr T also does care work. He does a lot of Guardian work, he represents the Guardian in other cases. The Guardian also has a surname beginning with T, so I’m going to just call him “Guardian” throughout. (all of the names are in the judgment, but that’s my scheme)

This again, is pretty normal.

After the hearing, the Guardian writes to Mr T. About this case. Which is not Mr T’s case. It is Mr S’s case, and Mr T is a senior partner at the firm.

That is NOT normal.

What does the Guardian say?

“further concerned that following the making of such application, father’s solicitor wrote to the Local Authority seeking to ascertain the professional competency of the Local Authority social worker, what skills and qualifications they had, what tools they would be using to assess father and whether they had the necessary acumen and experience to undertake a task which they considered to be sufficiently complex that only an ISW would have the necessary skills required to complete the report”

  1. GUARDIAN goes on to say that having considered the papers carefully himself he could not see the necessity for an independent social worker to assess the father in this matter.

He sets out his view that this is ‘the bread and butter work that social workers are specifically trained for’. He goes on to say:

“Therefore, I was very surprised that father’s solicitor should seek to undermine the competence of the social worker and argue that only someone with a significant level of experience in assessing sex offenders could undertake such a task.”

  1. GUARDIAN goes on to set out and expand his argument, in addition to the specific criticisms of the solicitor for the father and pointed out to Mr T the importance of accepting that social workers have significant expertise in relation to these matters.
  2. GUARDIAN then turns to his second point. This he says relates to “the actions of the solicitor”.

“I understand they sit on the Children’s panel and are deemed qualified to advocate on behalf of children. Like undertaking a parenting assessment is the bread and butter of social work, advocating in the Courts, presenting coherent arguments on behalf of those they represent and cross examining witnesses should be the staple diet of any practising solicitor. Further, any practising family law solicitor who is a member of the children’s panel should have that additional level of skill commensurate with the qualifications of the role. I was therefore rather concerned that having made a part 25 application to the Court for an Independent Social Work assessment, and further questioning the competence of the social worker undertaking an assessment of the father, the solicitor instructed Counsel to undertake this task on their behalf. It again concerns me that having questioned the competence of the social worker to undertake their role the solicitor appears to have abdicated their own role in this matter and asked someone else to present an argument to the Court for them”

  1. As can be seen, GUARDIAN is being critical of the solicitor instructed by the father for having briefed counsel. GUARDIAN suggests that was inappropriate, particularly, as in his view, the solicitor had questioned the competence of the social worker, but then had not argued that case himself at the hearing.
  2. GUARDIAN then elaborates on that by saying:

“This action by the solicitor reminds me somewhat of the old proverb “people in glass houses shouldn’t throw stones”. I don’t know the solicitor personally and cannot offer comment on their character. All I can do is observe their practise and comment on this if required. Given their qualifications and experience I would have expected that presenting an argument to support their case would have been nothing more than a run of the mill task for them. However, given their reluctance to undertake this task, and willingness to place that task into the hands of others, and their recent criticisms about the practise and expertise of the allocated social worker, I can’t help but think that in demonstrating an inability to undertake fundamental tasks relating to their own practise they are in no position to offer comment on the competence or ability of other professionals to do theirs.

WOW. Just wow.

Remember, this is the GUARDIAN, writing not to his own lawyer, but to a lawyer at the firm instructed by father, and not even to the father’s own lawyer but to someone senior at the firm. There is not a single bit of this that is okay.

Credit to Mr T, he immediately alerted the Guardian that he would have to share the email with the father.

The Guardian, instead of backtracking, doubles down with a further email to Mr T.

He set out that he accepted that it was the father’s right to make an application to the court for an independent social work assessment. He said that was not the issue that concerned him, but the issues:

were in regard to criticisms made by his advocate regarding the qualifications and experience of the Local Authority social worker to complete a fair and balanced assessment without any supporting evidence, and my concern that whilst making such criticisms of others the advocate, who is a member of the Children’s panel, appeared to lack the competency to present their own argument to the Court. At the same time, I also recognise that in certain circumstances it is not possible for individuals to present matters to the Court on their own and occasionally they need to instruct others to act on their behalf”.

  1. He goes on to say that he accepted that the members of Mr Tamber’s team were all suitably qualified, but that “the competence of this particular individual, in my opinion, was questionable”.
  2. In his next paragraph he sets out that he will “continue to raise concerns of any advocate if they unfairly criticised the practice of others, including local authority social workers without good cause or justification”.

Now of course, if the Guardian doesn’t like Mr S and doesn’t rate him, he’s entitled to have that view, he’s entitled to not instruct Mr S, and if Mr T says “I’m too busy for the case i’ve just sent you, but Mr S can do it” the Guardian is entitled to say ‘no thanks, i’ll go elsewhere’. That would be fine.

What is NOT fine, SO not fine, is to be unhappy about the job a parent’s solicitor does, and write to their ‘boss’ to complain about it.

The father, understandably, felt that the Guardian’s view of him and his case was bound to be coloured by this very visceral reaction to what seems on the face of it to have been perfectly normal conduct by his solicitor – his solicitor quite properly asked the LA about the experience of their proposed assessor, took a view that an independent expert was needed and made the application. Mr S is totally blameless here.

So the application was made to terminate the appointment of the Guardian.

This ordinarily, would be the point at which, with the benefit of reflection and legal advice, the Guardian files a statement saying ‘sorry, it seemed appropriate at the time, but I now see that I wrote an email in haste and possibly ill-temper and I regret it, let’s all move past it and sing Kum-bye-ar together’ or words to that effect.

  1. In his statement filed for the court, in paragraph 20 GUARDIAN says, “I was surprised by this line of questioning by Mr S of the professional competence of the social worker without any supporting evidence about her practice”. In paragraph 30, he sets out that he makes no criticism of the barrister’s submissions at the hearing, but says this “my criticism was of the earlier action of father’s solicitor, Mr S, in his email to the local authority questioning the skills and competency of ND to undertake an assessment of father without any evidence to support his claims”.
  2. Later in that statement he also refers to Mr S having sought “to undermine the skills and competence of the allocated social worker”, and then at paragraph 38 refers to feeling that his actions were justified “in raising concerns about Mr S’s unfair criticism of the social worker which in my opinion needs to be addressed”.
  3. He does go on to say that “on reflection I realised that my criticism of Mr S may have been too harsh”, but then later in the same document at paragraph 44 states that in relation to this application it was brought because “I privately questioned the actions of Mr S with his senior in relation to his unfounded concerns about the professionalism and competency of the social worker to undertake an assessment of father. In doing so, Mr S sought to undermine confidence in the social work profession and the professionalism within it”.

Within GUARDIAN’s witness statement, he then says this “I also raised questions that given Mr S’s own level of experience, as he is a member of the children’s panel of solicitors, I was surprised that while seeking to undermine the skills and competence of the allocated social worker he had instructed an advocate to pursue his argument and make submissions to court rather than undertake this task himself”.

  1. At the conclusion of his witness statement he says “while seeking to undermine the competence of the social worker, Mr S demonstrated weaknesses in his own professional skill by not presenting his own case before the court and abdicating this responsibility to others”.

Although in the hearing, counsel for the Guardian attempted to row back from this statement and soften the position, the Judge pressed very hard as to what the Guardian’s specific instructions were, and ‘may have been too harsh’ was as far as it went.

My favourite moment is when the Local Authority, who were in full popcorn mode, suddenly find themselves pressed by the Judge to come off the fence from ‘well, it is all very troubling but…’ and into well, what do you say should the Guardian be terminated or not?

Very tricky – on the history of such allegations, the Guardian is probably going to stay in the case and then you have to deal with a Guardian who you supported in being thrown out of the case. As Omar Little says, “you come for the King, you best not miss”

They understandably when their feet were held to the fire by the Judge, went with the safe option of not supporting the termination of the Guardian.

The Judge decided otherwise (and good on them, I say)

In my view, on the facts of this particular case, the Guardian’s actions have fallen short of the degree of fairness required of him and have created unfairness for the father. They have also been manifestly contrary to the child’s best interests. His actions require the termination of his appointment. My reasons are as follows:

a)GUARDIAN is not only clearly and obviously wrong in the assertions that he makes in relation to the email, and against Mr S, but he has not been able to accept that he is wrong in relation to those. The fact that, in the face of overwhelming factual evidence showing that he is wrong, he maintains his views, and repeats them, inevitably has a significant impact not only upon the father’s views of the Guardian’ s action and analysis in this case, but upon all the other professionals working within this case, and the mother.

Despite the other ways in which the Guardian has undoubtedly acted quite properly in this case, and in many other cases, and I have balanced that, it does not appear to me that that mitigates the impact of the fact that not only is he wrong, but he does not accept that he is wrong. In my view, if GUARDIAN had been able to admit to the court that he had been in error in sending that first email, and the second email, in his witness statement or of course before that, there may have been a very different perspective to be placed upon his actions. Even if within the court hearing of this application, I had been told that he had been able to reflect and accepted he should not have acted in that way, it seems to me that there would probably have been a different view to be taken.

Professionals within these courts are currently acting under simply enormous pressure. Each of the advocates addressed me on the issue that people make mistakes, people send emails that they later regret, people reflect with the benefit of time and perhaps less pressure. That is however simply not the situation here. That fact goes to the ultimate confidence that the court and the other parties can have in the guardian’s ability to make fair and sound judgments and recommendations in this case.

b) GUARDIAN has not only made these inaccurate and unfair criticisms of Mr S, but he also made them in an inappropriate way by asserting and maintaining that he can do that by way of ‘private’ emails. As above, it appears that even having had the benefit of legal advice, GUARDIAN again does not accept he was in error in acting in that way. In my view that aspect creates an inevitable belief for both the mother and particularly for the father, that this is a Guardian who does not consider that the normal rules apply to him. Put simply, in these court proceedings, brought by the state to separate them (in their view) from their child, how could it be that a guardian acted in that way, and remained the guardian for their child. I can think of no way to rationalise that such that the parents could believe in the fairness of this process if this Guardian remained the person representing the interests of their son.

c) Just as in the Oxfordshire case, it also appears to me it would be impossible for the parents to be able to be open and straightforward in future discussions with the Guardian, as they could not possibly view his actions as other than worrying at best, or blatantly wrong at worst. To further the welfare interests of N , this Guardian must be able to build a relationship with the parents, engage them, and for them to believe that he will act fairly in representing their son. I cannot see how these parents could possibly believe that, or how this court could suggest to them they could build that sort of relationship with him. Such a relationship of openness and respect it appears to me is extremely important in these proceedings. Indeed, that was reason for the guardian to be removed in the Oxfordshire case, to encourage frankness on the part of the parents. GUARDIANS’s actions therefore again are manifestly not in the interests of the child given the situation that it seems to me must result.

d) I have considered the realities of what would happen in other respects if GUARDIAN remains the Guardian. I agree with Ms Lakin that this issue would permeate and impact upon every decision made going forwards in this case, and in my view that would inevitably be contrary to the child’s welfare. Given the findings that I have had to make in this case, every decision and recommendation that GUARDIAN makes in this case will be questioned not only by the parents, but the social work team may do so as well if he disagreed with them. That in my view once again shows a direct causal link between his actions, leading to potential unfairness in these proceedings. It shows how his actions have been manifestly contrary to the best interests of the child. In the event that the Guardian takes a stance at any final hearing contrary to the wishes of the parents, or even potentially the local authority, a substantial amount of time would be taken up cross-examining GUARDIAN about these issues. I accept that it may be by that point that GUARDIAN is prepared to concede that his actions were wrong, but he may not given his stance to date. Whichever it may be, it creates confusion, significant worry for the parents, and a real possibility of delay in the future. In my view it also creates a significant diversion of the proceedings from the welfare interests of the child, and again a causal link is shown.

e) If GUARDIAN remains the court appointed guardian, there is another significant factor. Given what has happened, if the court considers he should remain the guardian for N, the reality must be the father would surely believe that an extremely important person in these proceedings views his solicitor as not being competent. That places the father in a most unhelpful state of uncertainty of how that could come about. I cannot see how that is fair to him. I have considered how that could be explained to the father and concluded that there would simply be no logical way to do so, particularly as GUARDIAN has not resiled from his view. Again, that impacts directly upon the fairness of these proceedings, due to the father’s inevitable concerns about what or who is right.

f) Connected with that concern in relation to the father, if GUARDIAN remains N’s guardian, the father will consider in my view that he has been placed in the middle of a substantial argument between his solicitors and the guardian. As he puts in his statement, his concern would be that the guardian was not going to be fair to him and his case because of his representation. It is easy to see how a parent would struggle to draw a distinction. That cannot possibly be fair to the father. That leads to unfairness in these proceedings.

g) These aspects that I set out above are not the type of issue that can be remedied by cross examination at a final hearing.

h) I therefore conclude for all the reasons set out above that there is a real likelihood that the actions of the guardian will lead to unfairness in these proceedings as a whole

RE N (A Child) (Termination of Children’s Guardian) 2022

https://www.bailii.org/ew/cases/EWFC/OJ/2022/B16.html

We’re going to need more intermediaries

Much like everyone in Britain eventually having to take their turn being a member of the Sugababes, we are all also going to need to be conscripted into being an intermediary for a short period.

(By way of background, an intermediary is a specialised professional who helps support vulnerable witnesses in the Court process, both during their evidence and during the hearing and also assists the Court with a report setting out Ground Rules of what accommodations ought to be taken during the hearing – for example breaks, the ability for an intermediary to explain things or seek a break to explain things and often guidance to the Court and advocates on how questions should be formulated)

This Court of Appeal decision is a cousin to the last case I wrote about, in that it is an appeal of a decision which was granted because the Court had not considered something that was never raised with them at the time.

After the decision was made by the Court, those representing A (who was not the mother of the child in question S, but the mother of another child J and who became an intervener in the proceedings and the Court made findings about her in relation to the child S) became concerned that the mother ought to have had an intermediary in the first set of proceedings – there had not been a cognitive assessment of her and those representing her had at the time not had a concern that she needed either a cognitive assessment or an intermediary.

In linked proceedings relating to J, cognitive assessments and an intermediary assessment had been undertaken, and that caused those representing the mother quite rightly to reflect on whether she ought to have had similar support in the original proceedings.

S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 (18 January 2022)

https://www.bailii.org/ew/cases/EWCA/Civ/2022/8.html

“The first report, dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:
“We are not recommending any special measures to enable [A] to participate in a hearing although she is likely to take benefit from there being regular breaks in the proceedings so that information can be explained to her in words that she can understand. Important information pertaining to the proceedings may need to be explained to her more than once. Professionals should ask her to repeat, using her own words, what has been said to her so that they can confirm her understanding.”
The second report, dated 7 September 2021, prepared by Dr Indira Josling, a consultant clinical and forensic psychologist, included the following paragraph:

“[A]’s cognitive functioning assessment showed that she is better at perceptual reasoning than verbal reasoning; she prefers written and verbal information to be presented in clearer formats extra time given to her to assimilate the material. Her full comprehension of what she may be reading may need further support and time and would not necessarily be immediate. I ensured that I gave [A] adequate time on all of her assessments to enable her to do so. I would also question whether she may need a separate assessment for dyslexia which may also present as a learning need. FSIQ score was assessed as being 88, low average. [A] may therefore require an advocate or intermediary in formal meetings, interviews and assessments to help assimilate written and verbal material and her comprehension needs may be better accommodated if other forms of communication were to be used e.g. flow diagrams, charts etc.”
On 18 November, A attended an assessment meeting with an intermediary employed by Communicourt Ltd. On 22 November, the day before the appeal hearing, an email was received by A’s solicitors from Communicourt in the following terms:
“I am recommending an intermediary for [A]. As she has difficulties with:
-processing long sentences
-understanding court specific terminology
-understanding and responding to complex grammatical structures
-understanding complex vocabulary
-processing simple verbal information
-remembering key dates, and often gets the detailed confused.”
On the basis of these assessments, Ms Suzanne Kelly, who represented A before the judge and before this Court, submitted that her client had hidden cognitive difficulties which were not apparent during these proceedings. She informed us that A had been able to give clear instructions and appeared to understand the advice provided and the proceedings. Towards the end of A’s evidence, Ms Kelly had some concerns that she might have some difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a result of the Covid-19 pandemic, she and her instructing solicitors had never met A in person before the appeal hearing. All instructions had been taken over the telephone.”

(I pause here to say that in the context of care proceedings where a cognitive assessment is undertaken a full scale IQ of 88 is not particularly low and would not tend to ring any alarm bells. It is low average. Hence my opening remarks – if intermediaries are going to be necessary for cases where a parent or witness has an IQ of 88 then there are going to be a LOT more intermediaries involved in care proceedings)

The Local Authority and the mother of S opposed the appeal.

“These assertions are, of course, all made “after the event”, after A had serious findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms Sally Stone QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds. She relied on the fact that no one had expressed concern about A’s cognitive functioning or understanding at any stage in the proceedings up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her solicitors and to participate fully in the hearing. Ms Stone took us to a number of examples in the transcript where, she suggested, it is clear that the appellant was competent to give evidence. Ms Stone drew attention to A’s use of language and to her ability to answer back, for example at one point saying “I’m not having you put words into my mouth”. Ms Stone also contended that A’s use of various words (“insinuate”, “tendency”) shows that she had a good command of vocabulary. In the circumstances, Ms Stone submitted that there was no reliable evidence that A was denied a fair trial.”

The Court of Appeal granted the appeal

“We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child) [2019] EWCA Civ 1997 at [53]:
“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.”
It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.
Returning to the case under appeal, we have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings, greatly extended by the problems caused by the Covid-19 pandemic. For reasons which it is unnecessary to spell out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone records, and police disclosure. Given the particular care which the judge devoted to ensuring that X had a fair opportunity to give her evidence, we feel confident that she would have adopted an equally careful approach to A’s evidence had she been aware of her difficulties. In the event, no party or legal representative identified the possibility that A was or might be a vulnerable person because of impaired level of comprehension and we are satisfied that she was fairly treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A’s legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they are unable to meet them in person. In this case, A’s difficulties were not immediately evident to Ms Kelly who only became concerned about her client’s level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A’s difficulties only became apparent in the subsequent assessments carried out by Dr Josling and Communicourt.
Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.
In her judgment, the judge observed that assessing the parties’ evidence was not a straightforward matter and at times it was “very difficult to identify the truth”. The judge’s attribution of responsibility for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a significant possibility that this evaluation would have been refined if not revised by knowledge that A had difficulties of comprehension as a result of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was substantially based on the judge’s assessment of A’s evidence, from which she drew a number of conclusions adverse to A’s credibility. These included conclusions about (1) the reasons A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate seriousness; (3) her account of how on the evening of 19 January she had noticed the abrasion to J’s arm but not the abrasion on his face; (4) her failure to inform school staff about the injuries, and (5) the delay of forty minutes in reporting the injuries to social services. It is likely that the judge’s interpretation of A’s acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A’s intellectual and communication problems. Most striking of all is the judge’s description of A as being “very deflective” during her oral evidence, “able to answer the question in a way that lost the actual question”, manipulative and “very calculating”. There is at least a significant possibility that this assessment would have been different had the judge known of A’s difficulties as subsequently explained by Dr Josling.
We therefore grant A permission to amend her grounds of appeal and to adduce the evidence relating to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity set out in the amended ground. It is important to stress that we are not saying that the judge’s findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.”

Special measures

This is an interesting appeal, heard in the High Court by Mrs Justice Judd DBE.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/3225.html

M (A Child) [2021] EWHC 3225 (Fam) (01 December 2021)

For background “Special measures” is the blanket term given for a range of solutions which can be applied to assist a witness considered to be vulnerable, particularly in a case where there are allegations of abuse from one adult towards that witness. For example, giving evidence behind a screen or by some sort of video-link, ground rules about being able to communicate that a break is needed and so on.

This case was a private law case, involving arguments about where M who was two years old should live and how she should spend time with her parents. As part of that, allegations of very serious sexual abuse from the father towards the mother including an allegation of rape were made.

In this case, at the fact finding hearing, there were no preliminary applications for special measures, nor any consideration of the possibility that such measures might be required.

At the conclusion of the finding of fact hearing, the Judge found that some of the allegations made by the mother were not proven by her and thus (as the law is binary) did not occur.

The mother engaged a fresh junior barrister and Queen’s Counsel for her appeal. The appeal was on two limbs – that the judgment was flawed in its analysis and conclusions and that the Court had failed to consider whether special measures were required and that this failure rendered the process and hence the conclusions unfair. As part of that, they also argued that the extent to which mother’s sexual history was the subject of cross-examination was excessive and that a special measures hearing would have properly addressed that in advance.

The father opposed this, arguing that those representing the mother at the hearing had not raised with the Court any suggestion of special measures and they could not point to any evidence that the lack of them had been detrimental to the mother.

The Court looked at the rules in relation to vulnerable witnesses, and referred to the new statutory provisions which had not been in place at the time of the fact finding hearing

25. Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person ‘is, or is at risk of being, a victim of domestic abuse’, the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A

The High Court considered that these Rules had not been properly followed:-

It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.
The provisions of rule 3A and PD3AA are mandatory. The word used is ‘must’ and the obligation is upon the court, even though the parties are required to cooperate.
Rules 3A.4 and 3A.5 required the court to consider whether the mother’s participation in the proceedings was likely to be diminished by reason of vulnerability both when giving her evidence and otherwise. There can be no doubt that the mother came within the category of those who might be vulnerable, as someone who was alleging domestic and sexual abuse.
The mother was fully represented throughout the proceedings, but the obligation to consider vulnerability is upon the court. I entirely accept Mr. Tyler’s submission that counsel for the mother (and possibly the father too) would be expected to remind the judge(s) of this, and that (as privilege has not been waived) we cannot know whether or not there was a conscious decision not to ask for special measures. These points do not, however, relieve the court of the responsibility it has been given under the rules. Whilst I also take note of the the dicta of May LJ in Jones v MBNA Bank [2000] EWCA Civ 514, as cited to me, there is a fundamental difference between the situation there and this one.

This was a very sensitive case where there were allegations of the utmost seriousness. They were of two rapes whilst the mother was under the influence of sedation and either drink or drugs respectively, and a third of anal rape when she was eight months pregnant. She also made overarching allegations of controlling, manipulative and intimidating behaviour on the part of the father.
The mother produced some explicit videos in support of her allegations of rape. In response the father
filed a witness statement setting out detailed evidence of the mother’s sexual activities, including numerous screenshots of her naked and masturbating with him watching. He produced a large number of explicit videos of their consensual sexual activities, and argued that her activities as a ‘cam girl’ demonstrated that, far from being intimidated into sexual acts by him, (including being videoed) she was confident, adventurous and open about her body. The court bundle for the trial contained several large pornographic photographs of her and several more small ‘stills’ exhibiting videos. She was asked about these matters extensively as part of the father’s case that the sexual relationship between them was an equal one. Her case was that she was doing this to please him and keep him.
There was evidence, that the judge referred to, that the mother had some long term underlying fragilities, and that she was anxious. In one of his statements the father said that he ended the relationship because the level of emotional and psychological support she needed was very frustrating and emotionally exhausting.

It must be clear from the matters I have set out above that this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.

The Court held that the appeal on both limbs should be granted and the case submitted for re-hearing.

It flags up the very important issue that even where a party does not apply for Special Measures or raise them as an issue, the Court must itself be alive to the issue and actively consider whether there are vulnerable witnesses and ask for the assistance of the advocates and parties in determining what special measures should be in place.

This was very obviously a case where special measures were likely to be appropriate and had they been applied for been likely to have been granted, but the failure or decision on behalf of the mother’s team not to do so did not prevent them from successfully appealing the findings of fact made as a result of a flawed process.

Whilst this arose in private law proceedings, the same principles will apply in public law proceedings and those advocates who are representing parties to those proceedings will need to ensure that the issues are properly ventilated and addressed, even if they do not materially affect their own client, to avoid the risk of an appeal.

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

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

It was one of those judgments that made the press

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

And the case itself

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

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

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

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

The significance of the case, legally was this:-

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

 

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

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

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

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

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

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

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

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

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

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

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

The reasons later begin at para 39

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

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

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

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

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

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