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Category Archives: case law

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.

Care Orders at home, and abandoning search for missing children

This is a decision by MacDonald J

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

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

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

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

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

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

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

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

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

Onto the broader issue of the case,

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

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

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

Special Guardianship Order AND a Care Order

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

Wellbeing fatigue / Pink Tape instead

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

Theoretical that is, until now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

K’s argument also included this point :-

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

The three questions for the appeal were these :-

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

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

The Court of Appeal decided that

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

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

So point 3 didn’t arise to be settled.

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

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

Blondie – Hanging On The Telephone – YouTube

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

Anyway, the Court of Appeal answer:-

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

Half-time submissions (again)

This is a case where the Court was invited to consider at the close of the Local Authority case whether the Local Authority application should be dismissed without hearing from other witnesses.

It was decided by Mr Recorder Howe QC sitting as a Deputy High Court Judge.

BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 (03 March 2021) (bailii.org)

Long-time readers may remember that Sir Mark Hedley considered this issue in

AA & 25 Ors (Children) (Rev 2) [2019] EWFC 64 (16 April 2019) (bailii.org)

which as it was pre-covid seems like a hundred years ago, but was actually just two years.

No case to answer in care proceedings | suesspiciousminds

In that case, the Court decided that the Court DOES have power to bring the case to a conclusion at a mid-way point, although declined to do so in that case.

In Re BB, the failures in the investigation process were awful but sadly familiar.

16. I have heard oral evidence from a number of professionals who received and recorded allegations made by the children. Those witnesses have included the 2 interviewing police officers, the supervising investigating officer, the foster carers for the children, 2 fostering agency supervising social workers, 2 local authority social workers and a fostering agency support worker. All of these witnesses, except the fostering agency support worker, have accepted that their meetings with the children, be they formal interviews or not, have breached the terms of the Achieving Best Evidence [ABE] Guidance. All of the witnesses, save the fostering support worker, accepted to a greater or lesser degree that their manner of questioning of the children either did or may have influenced the responses of the children. All of the witnesses accepted that they failed to take adequately detailed notes that included detail of the questions asked of the children. All of the witnesses, save the fostering support worker, accepted that they should, in hindsight, have behaved differently and all, other than the foster support worker, agreed that they would now behave differently.

18.The witnesses accepted that the children were given praise and attention when allegations were made. It has been accepted by all that they had questioned the children and not just listened and recorded the allegations made. All of the witnesses, save one interviewing officer, said that they believed the children’s allegations and as a result of that belief accepted that they had not kept an open mind. Both of the interviewing officers accepted that they conducted the interviews with the aim of having the children repeat the allegations they had made to the foster carers or to the fostering support worker.

19,All of the professionals receiving allegations from the children had received either no training concerning the application of the ABE guidelines, had attended training but many years ago that had not been repeated or had received training but could not adequately recall its content. Where some principles had been recalled from training received, all witnesses accepted that they had not applied those principles consistently, or at all, when interacting with the children.

20.It is these breaches of the ABE guidance that form the basis of the submissions made by the Respondents that no court could properly make findings of sexual abuse on the basis of the evidence this court has received. The Respondents have provided detailed schedules describing the breaches of guidance that they submit are present. These schedules particularise the breaches said to have occurred in the investigation of each allegation made by each child.

21. The Local Authority accepts there were very many breaches of the ABE guidance, although it has not in its response to the interim application engaged in any way with the particulars provided by the Respondents. The Local Authority accepts that the court may reach the conclusion that it cannot make the findings sought but it submits that the court cannot make that determination until it has heard all of the evidence in the case, including the evidence of the Respondents.

I think that every time I have written a blog post about a reported case involving Achieving Best Evidence interviews the judgment has always been critical and outlining the flaws in the process. I honestly cannot recall an example where the ABE interview is held up as being even competent, let alone praised for quality. It is so depressing that the lessons from many many cases just don’t seem to be learned. The guidance in Achieving Best Evidence are there to get the best quality evidence about an allegation – whether true or untrue, to help proper decisions to be made about criminal proceedings and about the welfare of children. Failure to properly conduct them leads to confusion, uncertainty, the parents and child being potentially wrongly separated and vast amounts of money and time being spent picking over a flawed interview to see what, if any, reliance can be placed on it.

PLEASE – if you are involved in the conduct of an Achieving Best Evidence interview or the planning of one, or are aware that one is planned to take place, take some time to ensure that the training is up to date, that the principles of Achieving Best Evidence are understood and that the planning of how the interview is to be conducted takes those principles properly into account. Two hours of planning before the interview can save many more hours of forensic dissection of the flaws that emerge, and it is not just the experience for the witness. Poorly planned ABE interviews LET CHILDREN DOWN.

The Court heard the representations from each of the parties as to whether the case should continue until each party had given evidence or be brought to a conclusion at this mid-way point.

The Judge decided:-

59.I have reached the clear conclusion that I cannot, until I have heard all of the available evidence including the evidence of the Respondents, determine the factual allegations pleaded by the Local Authority. In my judgment, there is an evidential purpose to hearing the evidence of the Respondents and I am unable to conclude that no court could properly make the findings sought by the Local Authority. I have reached these conclusions for the following reasons:

(a) I accept the Local Authority’s submission that, in family case, there is an expectation that the parents, and others who have voluntarily intervened, will give oral evidence to answer the allegations raised against them. In Re I-A (Children) [2012] EWCA Civ 582, Etherington LJ said there is a “need for a particularly conscientious and detailed examination of all the evidence” in cases involving allegations of sexual abuse, including the evidence of those accused and any evidence of previous dishonesty by the children making the allegations. At paragraph 22, Etherington LJ said “In my judgment, it would have been right and proper, in a case of this kind where there was a requirement for a detailed and conscientious assessment of all the evidence in relation to each specific allegation, for each specific allegation to be put to the witness so that there was a possibility of refuting it in whole or in part or at any event providing more details”. In my judgment, the need for conscientious examination of all the evidence does not just apply to those aspects of the evidence that might support those facing allegations. It also, in my judgment, applies to the consideration of the Local Authority’s case and the allegations made by the children.
(b) At the ‘half-time’ stage of a case, the Court has heard only part of the evidence. In my experience, the case of a Respondent can often be described as being at its height at the end of the Local Authority case as skilled cross-examination of the Local Authority’s witnesses can often appear to have undermined the reliability of the Local Authority’s evidence. However, save in exceptional circumstances, it is in my judgment the responsibility of the court to provide the Local Authority, and the children represented by the Guardian, with the same fair opportunity to cross-examine the Respondents as the Respondents have had to challenge the Local Authority’s evidence. This ensures the court is able to reach its conclusions on the basis of the best evidence. In my judgment the court should not readily reach a conclusion that cross-examination of a witness would serve no purpose. As described by Munby P in Re S-W [2015] EWCA Civ 27, at paragraphs 55 to 59:

“58. … I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to ‘testing the evidence’ or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.

  1. Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:
    “Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel.”
    In my judgment, these same principles must also apply to the Local Authority as they do to the Respondents. If the court is informed by the Local Authority, in this case an authority represented by Queen’s Counsel, that it has legitimate and forensically necessary questions to put to the Respondents, the Court should be very slow indeed to deny the Local Authority the opportunity it seeks. Of course, the Local Authority’s questions need to be more than a fishing expedition and be addressed to issues that the court must determine. As with any cross-examination, the matters upon which the questions refer must have some basis in the evidence before the Court. If there is no evidence, the witnesses can simply deny the suggestion and the matter goes no further.
    (c) In my judgment, the investigation of inconsistency and dishonesty by the cross-examination of family members is an essential part of the process in public law care proceedings. Much of what the court has to examine takes place behind closed doors. The Court is most often in the dark about what actually took place and has to piece together a picture of what is most likely to have occurred from the jigsaw pieces of evidence, pieces that come from many different sources available and from the different perspectives of each participant in the events being considered. In my judgment, the court should only deprive itself of this otherwise essential source of evidence where it can be satisfied that there is nothing that can be said by the witnesses that will inform its conclusions.

(d) I accept the submission made by the Local Authority that the court will be assisted by hearing evidence from the Respondents, particularly from the parents concerning the sexual knowledge demonstrated by the children in the allegations that they have made. Asking the parents questions on these issues is not reversing the burden of proof. It is a legitimate enquiry to enable the court to understand what might be the sources of this knowledge. The parents may simply not know but, equally, the answers to such questions might provide the court with some insight into how this knowledge developed. The answers to this legitimate and necessary area of enquiry are as likely to assist the parents as the Local Authority.

(e) Similarly, I agree with Mr Thomas that an exploration of the views of one mother as expressed in her police interviews may provide evidence of particular relevance. Why this mother seemingly accepted that her husband had sexually abused the children and, during her interview, threated to kill him as a result of that belief has obvious relevance to the court’s determinations.

(f) In my judgment, the Court can only reach a conclusion that no court could safely make findings after having heard all the available evidence. The Respondents rely on the decision of the Court of Appeal in JB (A Child)(Sexual Abuse Allegations)[2021] EWCA Civ 46, and the decision by Baker LJ not to remit the case for a rehearing on the basis that the breaches of the ABE guidance were ‘on a scale that no court could properly make the findings of abuse’. The decision of Keehan J in Re EF, GH, IJ (Care Proceedings) [2019] EWFC 75 was also relied upon. At paragraph 286, Keehan J said “I am satisfied that the conduct of the police investigation by DC Andrews was so woeful and her conduct with the ABE interviews so seriously and serially breached the ABE Guidance that I can attach little or no weight to the allegations made by the boys and in those police interviews”. Both judgments are said to be illustrative of the likely outcome in this case, it being said that the breaches of guidance here are as bad, if not worse, than those in the aforementioned cases.

However, the conclusions in JB (A Child)(Sexual Abuse Allegations) were reached on an appeal following a first instance trial hearing during which all the evidence had been heard. In his judgment in Re EF, Keehan J describes in detail his impression of the family witnesses and how hearing that evidence supported his ultimate decision that the allegations of the children were unreliable.

There are other reported Court of Appeal decisions that do not order a retrial after a successful appeal (Re W, Re F [2015] EWCA Civ 1300 being just 1 example) on the basis that no court could reasonably have found the allegations proved on the basis of the evidence before the court but no party has drawn my attention to a reported case where such a serious, and determinative, conclusion has been reached without having heard from those accused of perpetrating abuse.

I remind myself that I am considering the evidence in this case and it is not my function to reach a conclusion that ‘no court’ could make the findings sought. My function is to examine the evidence in this case and decide if I find the Local Authority’s allegations proved to the required standard.

(g) I accept that a judicial evaluation of the evidence is required for the 2 examples given by Sir Mark Hedley in AA v 25 Others. However, in my judgment the evaluation of the evidence that is required in this case is much more detailed than is appropriate to undertake at this stage of the case. An expert witness informing the court that an image on an X ray is not, as was previously thought, a fracture may remove from consideration all evidence of an inflicted injury having occurred. There is very little judicial evaluation required. That is a very different situation to the court having to consider each of the breaches of guidance alleged to have taken place and then trace through the chronology to assess how that breach has affected the reliability of the evidence that has come later. In my judgment the number of breaches highlighted by the Respondents does not reduce or remove the need for the court to undertake a detailed evaluation of all the evidence. The number of breaches in this case is closely matched by the number of allegations. What connection one has with the other, if any, is a matter requiring close examination that should, in my judgment, occur only once all the evidence has been received.

60.In my experience, where there are blanket denials of allegations of sexual abuse, the hearing of the evidence from those facing allegations can be a surprisingly quick exercise. If it is said that these events did not happen and are a product of a child’s imagination, the answers to questions are often a simple ‘it did not happen’. However, I have reached the conclusion for the reasons given above that there is a clear forensic purpose to hearing that evidence. The Respondents were present in both homes at times when it is said that these events were taking place. It is, in my judgment, essential that the court hears from them in response to the allegations that are made.

It may well be that in reaching my final conclusions, having heard all the evidence, that I will agree with the submissions now made by the Respondents. I may not. As I said during the hearing of the evidence, I accept that Family Court judges are expressing views about the reliability of the evidence they hear on a daily basis, both at the case management stage of proceedings and during the hearing of the evidence in trial. A ‘judicial steer’ to the Local Authority is an integral part of the Family Justice system that helps to ensure the appropriate use of the court’s resources. In the circumstances of this case, I have required the Local Authority to keep its case under review but I take the view that any further ‘steer’ is unnecessary as Mr Thomas is aware of the difficulties now present in the case he advances on behalf of the Local Authority. I have reached the clear conclusion that it would be inappropriate for me to express any view concerning the consequences of the breaches of guidance on the ability of the Local Authority to prove its case. My conclusions can only be reached after a careful examination of all the evidence and for the reasons given above, I will not make any determinations until after the Local Authority has had an opportunity to ask questions of the Respondents.

Care proceedings where parent was adopted

I’ve not come across this question before, so that’s always attractive to me.

And then having seen a question to which I didn’t know the answer, I see that Cobb J is the Judge, so I’m going to get an answer that is clear and shows all the working but succinctly. I’m fairly redundant as someone who summarises and makes things shorter and simpler when I get a Cobb J judgment. I could just put up the link and call it quits.

Anyway, the question is – when a parent in care proceedings is adopted, and the birth family have come back into their life, do the LA have a duty to assess the BIRTH family as potential carers for the child?

F, Re (Assessment of Birth Family) [2021] EWFC 31 (12 April 2021) (bailii.org)

Within these public law proceedings, is there any obligation on the Local Authority to assess members of the ‘original family’[1] (i.e., the biological/birth family) of the mother of the subject infant child (F), where the mother herself was adopted as a child and raised by adoptive parents?

The arguments of the parties

Ms Persaud argues that it is incumbent on the Local Authority to assess members of the birth family; she essentially argues:
i) they are bound to the mother and to F by a relationship of consanguinity; the legal severance of the family relationship has been “socially undone” by their recent contact;

ii) they know of F’s existence;

iii) they are interested in F; at this stage, F’s ‘birth’ maternal grandmother has not indicated any wish to care for F, but wishes to have contact;

iv) the birth maternal grandmother apparently successfully cared for a child after the adoption of the mother and her brother;

v) the mother continues, even now, to maintain some relationship with her birth father by text and phone;

vi) there are members of the wider family in respect of whom it is understood there are no social work concerns and who appear to be caring adequately for their own children.

She further argues that I could not/should not make the decision now but should await further outline information from local authorities in which members of the birth family live (they are scattered around the country) in order to reach a more informed view.

Ms Anning on behalf of the mother strongly opposes this approach. She argues that the decision should be made now, and that there should be no assessment of her client’s birth family. She makes the following points:
i) The mother strongly opposes any assessment of the birth family; she sees her adoptive family who raised her since she was six as her ‘family’. The mother’s view must weigh heavily in the evaluation of the issue;

ii) The mother contends that the birth family would be wholly unsuited to care for F; she relies on their historical failure to care for her, and what she knows of their current lifestyles; her relatively brief re-engagement with them has adversely affected her;

iii) The mother has in fact currently ‘fallen out’ with her birth mother; the prospects of any family placement within the birth family being free from conflict or drama is small;

iv) The mother feels sufficiently strongly about the issue of assessment that were it to go ahead, she fears that it could destabilise her currently reasonable mental health, and jeopardise her own chance to care for F; she does not feel that she is in a psychologically strong place, and feels anxious about embarking on the next phase in which she will be assessed in the community with F with this ‘hanging over her head’; I have in mind the expert opinion which suggests that if the mother engages successfully in psychological therapies, she may well be in a position safely and appropriately to care for her daughter;

v) Any assessment of the birth family would create divisions within her family – her parents who adopted her many years ago; and with her foster parents;

vi) The birth family, as a matter of law, ceased to be legally the mother’s family when the mother was adopted; there are no recognisable enduring legal rights;

vii) The Article 8 ECHR rights of the birth family are non-existent, or at best highly tenuous, given the lack of legal rights and the limited relationship between the birth family and the mother and particularly F; Miss Anning understandably relied in this regard on the comments which I made in Re TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6, and those of Peter Jackson J as he then was in Seddon v Oldham MBC (Adoption: Human Rights) [2015] EWHC 2609 (Fam) at 2, to the effect that the making of an adoption order brings pre-existing Article 8 rights as between a birth parent and an adopted child to an end.

Ms Kelly, on behalf of the Children’s Guardian, is, first and foremost, critical of the Local Authority for the delay in bringing this issue to the court many months after it first accommodated F. She further contends that no obligation falls on the Local Authority to assess the birth family in this case, and indeed that given the mother’s opposition to this course, it would be counter-productive for it to do so. In this, she aligns herself with the position taken, and the arguments advanced, by Ms Anning on behalf of the mother. She makes the additional point that one of the key philosophies which underpins a family placement for a child who cannot be cared by his/her parents is to ensure the continuity for the child of blood ties within established networks, where a parent may be able to continue to play a normal/natural role; this, she submits, would not truly be available here for although blood ties would be restored/preserved, the current difficult and tenuous emotional ties between the mother and her birth family, and the absence of legal relationship which was of course dissolved by the adoption many years ago, would make any placement very problematic indeed.

My gut feeling on this, having read those arguments, is that I can see why the Local Authority wanted the Court to answer this question and that I agree with the arguments put forward by the mother that where the mother doesn’t want her birth family assessed, that is the end of it. If the mother were actively putting any of them forward, I’d say they should be assessed.

Conclusion

For the reasons articulated clearly and comprehensively by Ms Anning and Ms Kelly (summarised at [15] and [16] above), and further elaborated on in the section above addressing ‘legal principles’, I am satisfied that the Local Authority should not embark on any assessment of the birth family in this case.
I am satisfied that the mother’s birth family are her ‘original’ family (as per ACA 2002) but are not her current ‘family’ nor are they her ‘relatives’ as those terms are used in Part III of the CA 1989. In that respect, their status (if any) in relation to F is materially different from the status of the extended or wider family as discussed in the caselaw referred to above, namely Re A, B, C and Re H. Furthermore, the birth family’s limited experience of F during a short visit in March 2020 (which culminated in a section 47 investigation as a result of the serious injury to F) falls a long way short of supporting any finding that they had acquired Article 8 rights to a family life with F. This right is not established on the basis of biological kinship alone.
Even if the birth family could bring themselves within the definition of ‘family’ for the purposes of the statute/caselaw, this does not place upon the Local Authority any obligation under statute to inform, consult, assess, or otherwise consider them in circumstances such as these (see [21]/[22]/[23] above). In that regard, I have assessed what the mother says about her birth family and have done so objectively and critically. In this context, I have been able to undertake the necessary ‘analysis’ of their potential as ‘realistic options’ as long-term carers of F at this stage, without undertaking or commissioning a fully-fledged ‘assessment’ (see Re JL & AO at §92(2)). On the evidence presented, there are at least four clear pointers steering away from the birth family as a realistic option to care for F: (a) the fact of the mother’s adoption 14 years ago following her upbringing characterised by turbulence and significant neglect (see [6] above); (b) the events surrounding the injury to F in March 2020, and their failure to report the same (see [9] above); (c) the accepted fact that the mother and her birth mother have a difficult relationship (see [12] above), and (d) the current view of the professionals that the mother should avoid contact with her family (see [9] above).
Quite apart from those considerations, I accept that the mother has a strong opposition to the birth family being assessed; this carries significant weight in my assessment (see Re A, B, C at §89(6)(5), Re JL & AO at §50, Re H at §37). In this case, I am further satisfied that involving the birth family in assessment would be likely to have a deleterious effect on the mother’s fragile mental health, at a critical time when she herself is being assessed in the community as a long-term carer for her daughter. It would also, I am satisfied, cause unwelcome and avoidable division in the relationship between the mother and her parents (Mr M and Ms N).
I should add that I could see a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent (the mother or father of the subject child) had re-connected successfully with his/her birth family, and this had been a wholesome and successful reunion. But that is plainly not the case here.
That is my judgment.

Jolly hockey sticks, or “It’s not recusunal…”

I always love a case about recusal, it threw up for example the delicious joy that was a High Court Judge cross-examining counsel about the Judge’s own lost luggage Judicial baggage | suesspiciousminds

This one is private law. A District Judge (DJ Wylie) had conducted a finding of fact hearing (the mother had made allegations of violent behaviour against the father, the Court heard the evidence and made decisions about what had happened, called ‘findings of fact’)

W (Children: Reopening/recusal) [2020] EWCA Civ 1685 (15 December 2020) (bailii.org)

Two findings were made, and the other two allegations were not made out. The father was later convicted for one of the matters set out in the first finding made. The case would then move to evidence, arguments and decisions about contact and possibly where the children would live.

The father, however, made an application for a re-hearing. It was decided that this application for a re-hearing ought to be heard by District Judge Wylie, which would be the usual course of events.

What was less usual though, is that DJ Wylie recused herself from the hearing and it went before His Honour Judge Duggan

At that hearing, father was in person, and mother was represented (although she was paying privately for her lawyer, which becomes important later).

All that the mother and father knew of DJ Wylie’s situation was that she had recused herself for personal family reasons. It seemed, but one can’t be sure, that HHJ Duggan knew a little more than that.

The Judge raised the issue of recusal and its impact on the findings. There were two broad possibilities – one that DJ Wylie having had reason to recuse herself would not sit on the case in future, and the second that if there was something that meant that she shouldn’t or couldn’t hear the case in the FUTURE then didn’t it follow that the work she’d done up to that point should be redone?

The father’s application for a re-hearing had a very high legal bar to cross, but as the Judge explained to him, an application that DJ Wylie having recused herself from part 2 of the case ought not to have done part 1 and the case should be re-heard as a result of judicial bias was probably an easier argument to make and succeed with. For the mother’s part, counsel explained that having paid privately for her representation, she would be substantially financially affected by having to run the fact finding hearing all over again, and importantly that nobody really knew what DJ Wylie’s reasons were for withdrawing.

HHJ Duggan decided that there was no suggestion of actual bias, but that an independent observer would consider that if a Judge couldn’t hear part 2 of a case for some personal conflict, then what they had done at part 1 might also be under doubt, and that thus the finding of fact hearing should be re-heard before another Judge.

The mother appealed, and the case went before Jackson LJ.

In the meantime, the mother’s lawyers wrote to the Court asking three very proper questions:-

  1. What was the ‘family connection’?
  2. At the finding of fact hearing in February 2020, had the Judge been aware of it?
  3. If so, why wasn’t it raised with the parties?

The Court replied, though very very late in the day (The DJ gave the Court the reply in July, the Court sent it to the parties in NOVEMBER! just before the appeal)

  1. The Judge’s son, and the mother, are members of the same hockey club. On social media, the Judge’s son and the mother follow one another.
  2. The Judge had not realised this until June 2020, well after the finding of fact hearing
  3. if the Judge had realised, she would have raised it with the parties.

At the appeal, the mother’s case was that the process before HHJ Duggan was flawed (the mother and father had not known the reasons for recusal, or what had been known by DJ Wylie at the time) and that HHJ Duggan had applied the wrong test in law.

As to recusal for the appearance of bias, Ms Bentley submitted that the Judge framed the test wrongly. The question is not whether a reasonable observer would be concerned that justice has not been seen to be done; the question is whether the reasonable observer would conclude that there is a real possibility that the judge was biased

The Court of Appeal said this:-

n my view, once the District Judge decided to decline to hear the case on the basis of recusal, she should have ensured that the parties were formally notified of her reason for withdrawing from the case. This could have been done at the time of the hearing before the Recorder. Had he been in a position to inform the parties of the facts so that they were in a position to respond, they may well have been content for the case to continue in front of another judge, as had already been contemplated. But as it was, they were left in the dark and both parties asked the obvious question “Why?”, the father ahead of the hearing before the Judge and the mother afterwards.

t is understandable that the Judge was troubled by this odd position and clear that he was acting with the best of intentions. At the same time, it was necessary for him to approach the matter systematically. The starting point was that the listed application was the father’s application to reopen certain findings of fact. There had been no regular process of recusal by the District Judge and there was no appeal before the Judge. In these very unusual circumstances, the fact that a party had not appealed was not a bar to the Judge raising the issue himself, but in doing so he needed to acknowledge that a decision to set aside findings on the basis of apparent bias was one that could only be taken in an appellate capacity. Procedural steps could have been taken to achieve this, but the issue was not addressed and it is not clear what capacity the Judge was acting in.

That procedural difficulty might not be insuperable, but there are other reasons why the Judge’s unexpected decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was, I regret, both wrong and unfair:

(1) The Judge was not in a position to take a decision about apparent bias: the decision calls for an informed observer, which supposes knowledge of the basic facts. He should have put himself in a position to inform the parties about the District Judge’s reasons for wishing to recuse herself so that they were in a position to respond. He instead referred only to the existence of a family connection, which they were in no position to assess. Consequently, they were not only unable to put their case about the District Judge’s withdrawal but, more seriously, they had no meaningful way of addressing the new and radical proposal to set aside her findings altogether. This process was not fair to either party.

(2) As to the legal test for apparent bias, the Judge was right to say that one must put oneself in the position of a reasonable observer who is not involved in the case. However, he was mistaken in stating that the test is whether the observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased, which is a stronger thing

(3) Finally, the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning. This was the sort of happenstance community tie that should be disclosed to parties by a judge who is aware of it, but would not ordinarily lead the reasonable and informed observer to conclude that the judge could not try the case fairly. In this case the matter was put beyond argument by the fact that the District Judge did not discover that her son and the mother knew each other until months after she had made her decision.

HHJ Duggan’s decision was therefore overturned, and the findings made by DJ Wylie restored, father’s application to reopen them being refused.