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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.

“But so what?” diplomatic immunity part 3 – smokey IS the bandit

 

You might remember, just before everyone’s world changed forever, that there was a case about alleged child abuse where the father had diplomatic immunity and the Court decided that the legal provisions in relation to that meant that an Interim Care Order to remove the children could not be made.

 

https://suesspiciousminds.com/2020/03/19/diplomatic-immunity-and-care-proceedings-take-2/

 

Well, things have developed.

 

A Local Authority v AG 2020

https://www.bailii.org/ew/cases/EWHC/Fam/2020/1346.html

 

The cast list in this is impressive. If you were doing a family law version of Kenneth Branagh’s Murder on the Orient Express, you couldn’t go far wrong with this list.  (A few honourable exceptions are missing, of course, but it is a sparkling list of extremely good lawyers.  If I’d been there, I’d have taken my autograph book…)

 

Basically, since the 20th March judgment, the Secretary of State invited the diplomats home country to withdraw his diplomatic status, they refused, but said that they all had to come home as soon as lockdown allowed it.

 

On 2 April 2020 D (18) sent an email to the local authority social worker attaching a photograph of a bloody wound to the back of his head. He explained that his father inflicted this with a shoe. He sent a further email attaching a video of the wound. In that video an adult can be heard shouting in the background.

iv) On 6 April 2020 the Secretary of State informed the foreign government that, in accordance with article 9(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), the father and his dependent family members (including the mother and all of their six children) were personae non gratae and were required to leave the UK at the first opportunity. That first opportunity was on 18 April 2020 via the outbound leg of a charter flight arranged for the purpose of bringing British nationals home from the foreign country.

v) On 7 April 2020 the local authority social worker was able to speak to D who said that it was horrible living at home with his parents as they are both verbally and physically abusive; that he had decided to leave the home soon with his sister E; and that they planned to seek asylum.

vi) On 8 April 2020 I transferred the care proceedings and the claim for a declaration of incompatibility to the High Court and joined the Secretary of State as a party to the proceedings.

vii) On 9 April 2020 D and E (18) left the family home and sought asylum.

viii) On 11 April 2020 N (17) and A (14) also left the family home and sought asylum.

ix) On 14 April 2020 I held that by virtue of article 9(2) of the VCDR the family was to be given a reasonable period of time to leave the country; that period had not yet elapsed; and that accordingly diplomatic immunity continued to endure.

x) On 16 April 2020 a certificate pursuant to section 4 of the Diplomatic Privileges Act 1964 was issued by the Foreign & Commonwealth Office recording the diplomatic exchanges mentioned above.

xi) On 18 April 2020 the parents, together with G (9) and S (5), returned to their homeland on a repatriation flight.

xii) On 20 April 2020 I made an interim care order in respect of A and gave directions for the hearing of the permission issue.

xiii) On 18 May 2020 I heard the permission issue and reserved judgment. I granted the local authority permission to withdraw the care proceedings in respect of G and S. I gave directions for the final disposal of the care proceedings in respect of A.

 

The issues in this particular case were resolved – the children are all out and safe, but there was an application to declare the Diplomatic Privileges Act 1964 as incompatible with the Human Rights Act 1998 (in relation to the inability to protect children whose parents are diplomats).

 

This case doesn’t resolve that, but it does decide the pre-fight – should there even be a fight on the principle given that it isn’t necessary in the individual case.

 

It being a Mostyn J judgment, it gathers up the relevant law on ‘academic’ claims and sets it out clearly and briskly.  If you could afford him, Mostyn J would be a very good author for “Insane Legal Complexities Made Simple”

  1. Up until 1999 the law set its face against hearing any academic claim: see the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] AC 111, 113-114; and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case Lord Bridge stated that it was a fundamental feature of the judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
  2. However, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, the House of Lords stipulated an exception to this absolute rule. Lord Slynn of Hadley stated at 456-457:
    1.  “My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

  1. Although I have had cited to me many subsequent authorities, all of them seem to me to be no more than illustrations of the Salem principle. This is straightforward. The court should exercise its discretion to hear an academic application in the public law field with caution. It should only hear such an application where there is a good reason in the public interest to do so.

 

  1. Lord Slynn gives as an example the situation where a discrete point of statutory interpretation arises which does not involve detailed consideration of facts and where a large number of similar cases are anticipated. In such circumstances there will be little difficulty in deciding that there is a good reason in the public interest to hear the academic claim. That seems obvious. However, I do not deduce from that illustration a rule that a good reason in the public interest for hearing the claim can only be shown if a large number of cases would be thereby affected. It all depends on the context.
  2. In this case it is certainly true that there have not been many reported cases of proceedings under Part IV of the Children Act 1989 involving the children of serving diplomats. But so what? If the resolution of the academic issue helps to protect even one such child in peril, then that surely is a good reason in the public interest to hear it.

 

That’s stirring stuff, and if my chair wasn’t a swivel one with wheels, I’d be climbing on it to punch the air and shout “Captain My Captain” like Dead Poets Society.

 

So, there will be a hearing about whether the provisions are incompatible with the HRA.  Nobody knows how that will go.  The Secretary of State has been joined, and there’s a significant Government interest in not futzing with the provisions of what diplomatic immunity mean  (they have to think about their own overseas diplomats, international relations and all sorts of things that I absolutely don’t think are as important as making sure children aren’t beaten, but we have different jobs and different hats)

 

Wait and see how the argument goes.

 

Diplomatic immunity and care proceedings take 2

 

I have previously written about the intersection of diplomatic immunity and care proceedings here.  (I mean, it is just nice to write the word ‘immunity’ without the word ‘herd’ in front of it this week…)

 

https://suesspiciousminds.com/2018/04/24/care-proceedings-and-diplomatic-immunity/

 

In that case

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html 

 

an allegation that a woman who worked for X High Commission had hit a child 40 times and shaved the head of another.  Knowles J decided in short that:-

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

 

In this case, Mostyn J was deciding a case in which the allegation was that the father, who was a diplomat, and the mother, had assaulted their six children with a belt and in relation to one child had hit her with a broken chair leg and that child had partially lost sight in one eye.   This being a Mostyn J judgment, it is carefully reasoned and gives a very interesting potted history as to diplomatic immunity, including this very specific recital to the first statute on the point

 

“Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty’s good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.”

 

It’s not quite as niche as Handel’s Naturalisation Act 1727 which applied to just one individual, but that is still a niche introduction

https://en.wikipedia.org/wiki/Handel%27s_Naturalisation_Act_1727

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/18.html

A Local Authority v AG 2020

The Local Authority sought Interim Care Orders, and the parents argued (without getting into the facts of the case that diplomatic immunity meant that civil proceedings could not be brought)

Mostyn J disagreed with the decision of the former President Lady Elizabeth Butler-Sloss in Re B 2003 and Knowles J in Re A Local Authority v X 2018 and that the diplomatic immunity did prevent civil proceedings being brought.  He cited the decision of the Supreme Court in In Reyes v Al-Malki & Anor [2017] UKSC 61, [2019] AC 735   (a case dealing with alleged race discrimination and employment law of a staff member of a Saudi diplomat. )

 

 

In essence, the only thing that could be done was to write to the FCO and ask them to liaise with the relevant country.

As discussed recently in the case about vaccinations, where a High Court Judge refers to an authority by another High Court Judge and disagrees with it, the law then shifts to be the latest decision  (unless and until another High Court Judge or a more senior Court disagrees with it).

Therefore, at the time of writing, diplomatic immunity means that child protection proceedings cannot be brought and the issue of whether or not the conduct occurred within the course of those professional duties does not arise.

 

I would anticipate an appeal in this case.  I don’t know which of Knowles J or Mostyn J is right   – I might possibly have my own view (legally, as indicated Mostyn J is now right and the relevant authority on the point) but it needs a Court of Appeal decision to let us know.

Collar me, don’t collar me – I’ve got my spine, I’ve got my orange crush

 

 

I know that I say a lot ‘this is an odd one’, but yep, this is an odd one.

Committal proceedings arising out of private law proceedings (where a mother and father are disputing arrangements for the children between themselves).  There were allegations that the father was misusing drugs.

There were further allegations that the father was thwarting drug testing of his urine samples by

running the tap and placing the testing strip in hot water, stockpiling negative tests, or by carrying an orange squash solution which he would pour into the sample pot pretending it to be his urine.

 

Which reminds me both of Withnail’s cunning plan to procure a child’s urine so that he could drink drive and escape justice and of the Wire where Bubbles comes up with a similar plan to obtain a clean urine test from someone else for Johnny who was having to submit clean samples to escape prison, thwarted when Johnny reminds him ‘yo, Bubs, who the hell do we know who has clean urine?’

 

Anyway, within the proceedings, a hair strand test was directed.  What happens next is a little odd.

 

 

13                As I indicated earlier, the father was due to file and serve the results of hair strand testing on 1 September 2019.  That did not happen and there was a suspicion about that in terms of the lapse of time.  Suspicions were heightened when father’s solicitor indicated in a telephone call that father himself was due to send him the report in short order.

 

14                It is unusual for a represented party to arrange the hair strand test themselves and, ordinarily, the results would be sent directly from the service, provided to the solicitor for onward circulation to the court and the parties.  It came to be that the statement from Cellmark was eventually circulated by the father’s solicitors on 20 September 2019 and that statement was authorised by one Alistair Derrick, a forensic scientist employed by Cellmark.  The statement is dated 10 September 2019 and outlined that the father provided a sample of hair on 6 September 2019 of 3.6cm in length.  The result suggested that no substances were detected.

 

It’s a little odd, because normally the report comes TO the solicitor, who then sends it out to their client, rather than vice versa.

The mum, in full-on Wagatha Christie mode, spotted that the length of the hair sample was longer than dad’s hair….

15                There are a number of curious features about that report: namely indicating that the father’s hair samples were 3.6cm and that did not accord with observations by the mother in relation to his hair length at contact handovers.  It was also odd that the father’s statement, circulated on 24 September 2019, made no reference whatsoever to the drug test results, which is a peculiar omission given that his progress of contact largely depended on whether he could provide evidence that he was drug-free.

 

16                Those suspicions, coupled with the mother’s knowledge of the father’s historical untruthfulness, led the mother to requesting that her solicitor contact Cellmark to establish whether the report they received was legitimate.  To her dismay, and subsequently it became a substantial matter of concern to the Family Proceedings Court, the report circulated by the father was not the report prepared by them.  The report they prepared, in fact dated 26 July 2019, related to a sample taken on 12 July 2019.  The hair length was reported to be 1.5cm and the report confirmed that the result was positive for cocaine for the period covering the end of May 2019 to the end of June 2019.

 

 

In the words of Alexander O’Neal  – you’re a fake baby, you can’t conceal it – know how I know? Cos I can feel it

 

  It became apparent therefore, beyond doubt, that the father had resorted to the most extreme lengths by falsifying evidence for his own gain without any regard to the safety and welfare of Z.  I observe, so far as the court is concerned, that this type of deception undermines the system and devalues and seriously undermines the court’s ability to protect children in these circumstances.  It is a very serious issue.

 

18                There were a number of reports filed, and evidence filed subsequently, and it came to be that the father subsequently admitted that he did, in fact, change the witness statement of Alistair Derrick, and has described it as a serious error of judgment, and in these committal proceedings throughout has not tried to minimise his actions in any way and has been open in terms of what he has done and has shown true contrition and, furthermore, paid the mother’s legal costs throughout.

 

 

 

20                Matters came before the Family Proceedings Court on 1 October 2019 and there was an application to adjourn, and further directions were made for Cellmark to file their correct report of 26 July 2019, for a statement to be prepared by Alistair Derrick of Cellmark, and another statement from Cellmark in terms of the date of collection of the sample.

 

21                When the directions had been agreed in correspondence in advance of the hearing on 1 October 2019, the father subsequently admitted he had falsified the evidence and there was an attempt by him to retain the hearing as a final hearing, requesting that the lay justices consider this issue as part of their overall judgment.  This application was, to all intents and purposes, a complete waste of time and the justices were sufficiently concerned about the matter to refer the matter to a Judge for the consideration of contempt proceedings.

 

22                So it came to be, as is made plain from the recitals of the Magistrates’ order of 1 October 2019, that the matter came before me, and father was directed to provide a statement.  There was some difficulty, it was provided in manuscript; it should not have been.  I put that to one side, it is a minor aggravation considering the serious issues in relation to this case.

 

23                Crucially, and this is the matter of public interest to which I alluded earlier; within his statement the father confirms that he amended the report using a programme called Adobe Acrobat Pro.  He claims to have procrastinated for two months about what to do about the positive tests, yet he later suggested that he had acted suddenly.  It matters not, because the fact of the matter is that he used this programme and altered the results.

 

 

The Judge found, and the father admitted, that he had committed contempt by falsifying these results. The Judge gave him a twelve month sentence, suspended for 12 months.

Z (A Child : committal proceeding) [2020] EWFC B5 (24 January 2020)    

http://www.bailii.org/ew/cases/EWFC/OJ/2020/B5.html

 

 

A tale of five silks, five months and a seven day order

As Bob Dylan sang ‘But they got a lot of forks and knives, and they got to cut something”

 

As far as I know, there has never been a reported case about a Child Assessment Order. In fact, up until this case, there had only been three reported cases that mention one in passing in a case where one was made, and another three that just mention them by way of illustration. In 26 years of practice, I’ve only applied for one ever.  They are so niche, I couldn’t even find how many have been made from the Family Court statistics.  (I was told, anecdotally, that the one I applied for 8 years ago was the 14th ever)

 

They are very rare. I’ve never heard of one being contested. But here we are with not only a contested one, but an appeal about a contested one, with five silks in it to boot.

 

I write this post therefore in the knowledge that it is extraordinarily unlikely that any of the issues in the case will ever emerge again, but hey, if they do, the answers are here.

 

 

Re  I (Children : Child Assessment Order) 2020

http://www.bailii.org/ew/cases/EWCA/Civ/2020/281.html

 

Quick info-dump, a Child Assessment Order is pretty much what the title suggests – it is an order by a Court authorising an assessment to be carried out on a child.  It covers a similar function to section 38(6) where the Court controls what assessments are carried out on children who are within court proceedings, but is a stand-alone application.

You might, for example, use it in a case where you want to do an X-ray of a child whose sibling has a suspicious fracture and you are wanting to check whether the other child has any injuries and the parents say no, but you don’t want at that point to seek an Emergency Protection Order or Interim Care Order.

 

Why was one sought here, why was it controversial, why on earth are five silks involved, in an application generally considered to be niche and fairly trivial ?  Note that the assessment lasts for seven days, the application was made in October 2019, decided in December 2019, and appealed by February 2019, so the court process lasted for five months, or approximately twenty times the duration of the order under dispute.   You’ll see why there are broader issues in a moment, assuming you are still here…

 

Lord Justice Peter Jackson sets it all out very clearly, but the tl;dr is “Suspicions of radicalisation”

Ah, you say, now I get why everyone got silked up.  And why the case has wider-ranging issues that warranted all of this furore.

 

  1. This appeal concerns the court’s power to make a child assessment order under s.43 of the Children Act 1989. It arises in relation to a family with five children. The children, whose ages range between 18 and 9, are making excellent progress and have impressed everyone who has met them. Why then are they the subject of proceedings? The answer lies in their father’s conviction under the Terrorism Act 2000, for which he received a substantial prison sentence. His offences consisted of addressing meetings to encourage support for or further the activities of Islamic State. He had for many years been associated with extremist beliefs and has a previous conviction for violent disorder arising from a sectarian assault, for which he served a term of imprisonment in 2014. In January 2015 he was made the subject of an ASBO arising from earlier violent demonstrations. In December 2015 he was arrested for the terrorist offences.
  2. Following the father’s arrest, there was concern about the impact of his beliefs and activities on the family. It was found that one or more of the children had been taken to meetings at which the father had spoken, and an image of a beheading was found on one of the children’s phones. More recently, evidence emerged showing one or more of the children holding placards at a demonstration in support of the Caliphate. In early 2017 the local authority in whose area the family lives therefore carried out an investigation under s.47. At that stage the mother was assessed as recognising the risks and acting protectively. There was no evidence of her being implicated in the father’s views and activities. The local authority’s plan was for further assessment when the father was due to be released from prison.
  3. The father was released on licence in late 2018, and was placed in a hostel. A further s.47 assessment was undertaken by the local authority. By contrast with the earlier assessment, this raised considerable concerns about the mother’s protectiveness. She said that the father had strong views but that they were not criminal. She referred to the undercover officer whose evidence had led to the father’s conviction as a “snitch”. The assessment, completed on 13 March 2019, concluded that: a Child in Need plan was required (as the father wanted to go home); the Probation risk assessment should be obtained to identify the father’s current view of his offending; the father should be interviewed; an Intervention Provider should be instructed to talk to the children; fuller work should be carried out to provide the children with clear information about their father’s offending; the father’s interaction with the children should be observed.
  4. The mother opposed these interventions, describing them as a collective punishment driven by religion and not genuine concern. The local authority convened a Child Protection Case Conference on 20 May and the children became subject to Child Protection Plans. A referral was made to Prevent so that the case could be discussed within the Channel Panel, a multi-agency panel designed to safeguard individuals at risk. In June, the parents consented to direct work being done with the children but later that month they withdrew that consent. The mother declined to meet a representative from Prevent or engage with a parenting assessment. As a result, the Probation Service advised that the father’s licence conditions had been changed so that the mother was no longer approved to supervise contact. At the Channel Panel meeting on 5 July it was decided that the children should be assessed by an Intervention Provider to establish whether they required mentoring with the aim of increasing theological understanding and challenging extremist ideas that may be used to legitimise terrorism. The parents declined to consent to this assessment.
  5. These events added to the local authority’s concerns. On 22 July, it initiated the process leading to public law proceedings (the PLO process) by sending formal letters to the parents, as a result of which they qualified for legal representation. Then, on 20 August, the father’s licence was revoked due to a breach of his licence conditions. He remains in custody and his release date is not known.
  6. A PLO meeting took place on 5 September. The mother attended on her own. She refused to consent to unannounced visits, a parenting assessment, direct work with the children, or to work being carried out by an Intervention Provider. Further details of the parenting assessment and the direct work proposed were provided to the mother by letter but on 23 September she responded by saying that she did not consent to any work being carried out.
  7. On 7 October, the local authority decided to apply for a child assessment order, with a view to an assessment being carried out by an Intervention Provider. It issued its application on 4 November. Directions were given by Newton J on 13 November and the final hearing took place on 4 December. The application was opposed by both parents and by the four older children, who were separately represented (the eldest has since turned 18 and is no longer the subject of proceedings). It was however supported by the Children’s Guardian. He considered that it is not known whether the children have been exposed to the risk of radicalisation by their father’s actions and beliefs, or whether their mother is fully protective. The family’s unwillingness to work with the local authority has prevented it from assessing either the level of risk or what support can be offered.

 

The Judge at first instance, declined to make the Child Assessment Order  AND ruled that he in fact had no jurisdiction to make one.

 

Here are the statutory provisions  (bits in red are mine for emphasis)

43 Child assessment orders.

(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

(b) an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and

(c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

(2) In this Act “a child assessment order” means an order under this section.

(3) A court may treat an application under this section as an application for an emergency protection order.

(4) No court shall make a child assessment order if it is satisfied—

(a) that there are grounds for making an emergency protection order with respect to the child; and

(b) that it ought to make such an order rather than a child assessment order.

(5) A child assessment order shall—

(a) specify the date by which the assessment is to begin; and

(b) have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.

(6) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—

(a) to produce him to such person as may be named in the order; and

(b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.

(7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.

(9) The child may only be kept away from home—

(a) in accordance with directions specified in the order;

(b) if it is necessary for the purposes of the assessment; and

(c) for such period or periods as may be specified in the order.

(10) Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.

(11) Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—

(a) the child’s parents;

(b) any person who is not a parent of his but who has parental responsibility for him;

(c) any other person caring for the child;

(d) any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;

(e) any person who is allowed to have contact with the child by virtue of an order under section 34; and

(f) the child,

before the hearing of the application.

 

 

Let’s deal with the jurisdiction point first, which might be classified as a ‘smarty-pants lawyer argument’.  I mean, I wouldn’t categorise it that way myself, but other less kind people might. Naughty other fictitious people.

 

The judge’s conclusion on jurisdiction

  1. The challenge to the court’s powers was pursued by both parents before the judge. However, on the appeal neither the mother (following a change of leading counsel) nor the children sought to uphold the judge’s decision in this respect and it was left to Mr Twomey QC and Mr Barnes to pursue it. The argument runs like this. The effect of ss. (1)(a) and (b) is that the local authority must have reasonable cause to suspect harm or likelihood of harm and the assessment must be required to enable it to determine whether harm or likelihood of harm exists. The local authority must, they say, demonstrate that it has “a suspicion (and no more)”. In this case, the local authority could only have decided to place the children on child protection plans and to activate the PLO process if it had already judged there to be the existence or likelihood of harm: Working Together to Safeguard Children 2018, page 45. Its state of mind was therefore one of belief, not suspicion, and accordingly the test under (a) is not satisfied. Nor, for the same reason, can the local authority meet the test under (b) because the assessment is not required to enable it to determine whether or not the children are suffering or likely to suffer significant harm: it already believes that they are. Even though as a matter of normal statutory interpretation, the greater includes the lesser (so here belief includes suspicion), that approach does not apply as this provision concerns the state of mind of the local authority.
  2. In oral argument, Mr Twomey asserted that as a matter of law the consequence of any one of local authority’s actions in calling the child protection conference, making child protection plans, or initiating the PLO process was to make an order under s.43 unavailable to the local authority and the court. It would not be open to the case conference to decide that an application under s.43 was an appropriate course to safeguard the children. Put another way, if the local authority wanted to seek an order under s.43, it was obliged to go to court before calling a child protection conference. Once it had reached the stage of ‘belief’ the only options open to it were (a) doing nothing, (b) continuing to seek the parents’ consent, or (c) issuing care proceedings. These outcomes are, he said, mandated by the plain words of ss.(1), but he was unable to suggest any good sense to this interpretation, either in terms of child welfare or good social work practice. In particular, he was unable to rebut the local authority’s argument that it would be fundamentally contrary to good social work practice and to statutory guidance for a local authority to apply for a court order before seeking to work with the parents by less interventionist means.
  3. The judge set out these and other arguments at some length, before stating his conclusion in a single paragraph:
    1. “36. Generally, as a matter of construction, the greater includes the lesser. In looking at the Act however, there is a gradual proportionate and cumulative incline in what is required to permit interference in a family’s life by the state. Section 43 is founded on a reasonable cause to suspect. Section 38(2) is founded on reasonable grounds for believing. Section 31(2) is founded on the court being satisfied. Each tier has available to it a raft of supporting powers proportionate to the level of inquiry and a possible conclusion. For that reason, it seems to me that the submissions made in respect of this point (the lesser not being included in the greater) are well founded, since I examining the local authority’s state of mind.”

 

In short – because the LA had held a case conference and registered the children, they had crossed a test of ‘reasonable grounds to believe they were at risk of significant harm’, whereas the test for a Child Assessment Order is ‘suspicion that they are at risk of significant harm’.   You may well be saying, but the test for a Child Assessment Order is LOWER, so if they met the former, the latter must be met too. And you would underestimate the smartness and ability of a silk to make what seems like a bad point into an argument.   The argument here is that in over-shooting the test, it is no longer a ‘suspicion’ but a ‘reasonable belief’ and thus it is not open to the LA to seek a Child Assessment Order because their evidence is TOO GOOD.

You can see that the Court of Appeal were sceptical, because the natural end point of this is that the LA ought to dash into Court to seek an order rather than to seek to work with the parents under a PLO or a Case Conference, which flies in the face of the way things are supposed to work.

Fascinating though the suggestion that an examination of the local authority’s state of mind is needed is, the Court of Appeal were not convinced.

 

  1. With respect to the judge, I consider that he was wrong to reach this conclusion for these reasons:
  2. (1) Section 43 must be read in the context of the legislation as a whole. As Mr Samuels QC and Mr Lefteri submit, the scheme of the Act points to the child assessment order as forming part of the initial stages of investigation and assessment. As Ms Howe QC and Ms Chaudhry say, the purpose of the section is to enable proper assessment to establish whether there is a need and justification for any further action. This is also the effect of the statutory guidance quoted above.

(2) The condition at ss.(1)(a) provides a relatively low threshold of reasonable suspicion. This is a threshold to be crossed, not a target to be hit. The normal rule of statutory construction applies to this provision as to any other. The reason given for departing from it, namely that the court is examining the local authority’s state of mind, has no logical foundation.

(3) The only restriction on the use of s.43 where the threshold is crossed is that provided by ss.(4) which prevents the making of a child assessment order when an emergency protection order should instead be made.

(4) The condition in ss.(1)(b) plainly exists to ensure that an assessment can only be ordered if it is required, i.e. necessary. However, a determination of whether a child is suffering or likely to suffer harm is not confined to a ‘yes’ or ‘no’ answer. The assessment is designed to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. Nothing less will allow the local authority to understand the child’s situation and determine how best to proceed. The narrow interpretation of the provision accepted by the judge overlooks the essential qualitative character of the assessment process. It also fails to connect with his own description of the underlying question as being “under what circumstances might the parents’ religious views and activities result in harm to the children’s physical and emotional health and wellbeing?” That was the question to which the assessment would be directed.

(5) The suggested interpretation does not provide “the sensible approach to child protection” spoken of by Baroness Hale. It conflicts with good social work practice and needlessly limits the flexibility with which the powers under the Act should be exercised. It is clear from the guidance that it is not the intention of the legislation to push the local authority into making an application under Part IV in order to obtain an assessment. That might then lead to substantial litigation and an application for the proceedings to be withdrawn, as happened in the radicalisation cases A Local Authority v A Mother and others [2017] EWHC 3741 (Fam) and In re A and others (Children)(Withdrawal of Care Proceedings: Costs) [2018] EWHC 1841 Fam; [2018] 4 WLR 146. This would fly in the face of the principle of proportionality and if it were correct it would effectively render s.43 redundant.

  1. For these reasons I would unhesitatingly conclude that as a matter of law the court had the power to make a child assessment order in this case.

 

Of course, the parents could make use of the argument in section 43(4) that the Court can’t make a Child Assessment Order if the Court considers that it should make an Emergency Protection Order instead, but you can easily see why that would not be an attractive argument to deploy on behalf of a parent.

 

So, having ruled that the Court COULD make a Child Assessment Order, the Court of Appeal then considered whether in the circumstances of the case, the Judge was wrong to decide not to make one.

 

 

  1. The judge then concluded:
    1. “48. The evidence and legal principle in this, as in other such cases, is complex and has to be considered on a case by case basis. Applying well established principles to the evidence that has been available to the Court, I am satisfied that the authority in this case has not satisfied the provisions of s.43.

49. Once the absent evidence has been obtained, even at this belated stage, further urgent decision making will be required about whether or not it is appropriate that there needs to be intervention and of what sort. The approach of the family will obviously be an important part of that analysis.”

  1. Because the judge did not express himself with reference to the terms of the statute, it is not easy to be precise about his reasons for refusing the local authority’s application, but they would seem to be these:
  2. (1) He had no power (as above).

(2) It is too late. There were probably reasonable grounds for suspicion in 2015, and the local authority should have acted then. After “4 uneventful years” now is not the time to assess the risk.

(3) (Though not said in terms) the local authority does not have reasonable grounds for suspicion. The application needed more than a “historic” foundation. The failure to gather available evidence about the father from the probation and prison service means that there is no current evidence of the children having been affected by their father’s views.

(4) Alternatively, and for the same reasons, the assessment is not required.

(5) In any case, an order would be disproportionate.

(6) It is unlikely that the older children will participate in an assessment. Endeavouring to compel them to be assessed would be heavy-handed, disproportionate and possibly unfair.

(7) Given the children’s stance, an assessment would not be likely to produce better information than is presently available.

(8) The local authority can think again once it has more information.

 

The Court of Appeal set out the arguments of the LA and Guardian urging a Child Assessment Order and the parents urging that the initial decision should stand.

Their conclusions

 

  1. This aspect of the appeal is from an evaluative decision of a trial judge and it can only succeed if the decision is one that the judge could not reasonably have reached on the evidence before him. That is a high hurdle, but I conclude that it has been cleared in this case for these reasons:
  2. (1) The judge’s approach to the two questions that faced him was inherently inconsistent. Having decided the question of law on the supposition that the local authority was overprovided with information, he based his evaluative decision on the conclusion that it had insufficient evidence for its concerns.

(2) The circumstances of this case present a clear basis for serious concern about the welfare of these children, which their good progress alone could not dispel. Risk of this kind can never be regarded as “historic” until it has been positively shown not to exist, but the judge gave little or no weight to the obvious risks inherent in the father’s long-held views, which were only magnified by the family’s more recent withdrawal of cooperation. The alignment of position between the parents was a further troubling development.

(3) In contrast the judge gave disproportionate weight to his view of the local authority’s approach. In effect he substituted for the requirement for reasonable suspicion a test of whether the local authority had acted reasonably. And even if it was appropriate to criticise the decision to await the father’s release before refreshing its assessment (and for my part I can see no reason to regard that approach as unreasonable) the court was obliged to deal with the case on the facts as they were, not as they might have been.

(4) The judge was plainly unimpressed by the inter-agency working in this case. He considered that information about the father’s current mindset was necessary and should have been obtained before assessing the children. But even if dependable information about that could be obtained from other agencies, it would only fill in part of the picture and an assessment of the children was likely to be necessary in any event. The argument that an assessment should not be ordered because there are gaps in the evidence is circular.

(5) In any event, the judge appears to have accepted that all the information was needed (see paragraph 49 of his judgment). If he considered more information about the father was a precondition to an assessment of the children, he could have given directions for that information to be obtained. The absence of evidence from the parents is also something that should have been noted. Having taken the position that the judge did, the appropriate response was not to dismiss the application but to adjourn it.

(6) The level of past cooperation by the mother or children could not be of much significance if they have withdrawn cooperation before the local authority has the information that it needs to plan its child protection strategy.

(7) The proportionality exercise in this case went awry. The description of the assessment proposal as heavy-handed, disproportionate and overbearing cannot be sustained. High-performing, law-abiding children are not immune from the insidious lure of extremism. The proposed assessment was by no stretch of the imagination disproportionate to the risk in this case. The submission that the children would be left in a vulnerable position without legal representation or that they might be placed in a situation that was unfair is a misreading of the nature of the child protection and litigation processes. Social workers and intervention providers are not threats from whom the children must be protected, but public servants who are seeking to protect these children by means of the least intrusive intervention. The children’s committed lawyers (both those they instruct directly and those representing the Children’s Guardian) will surely not become unavailable to them at the moment the order is made, in the face of an imminent brief assessment.

(8) Even if the reasons for refusing an order in the case of the older children could be sustained on the basis of their views, that would not warrant a refusal to make an order with respect to the youngest child.

  1. A yet further argument was presented by Mr Twomey. He suggests that s.43 does not permit an assessment of the children’s religious faith as that is not a facet of their health, development or treatment by their parents. That argument is self-evidently unsound. What is being assessed is not the children’s religious faith but their vulnerability and resilience in the face of extremist propaganda masquerading as religious faith.
  2. I would however hold that the judge was right to find that the opposition of the older children was not an obstacle to the making of an order. In this respect, his approach is to be preferred to the dicta in Re Q (see paragraph 30 above). As can be seen from the statutory guidance, it is not strictly correct to characterise a child assessment order as an emergency intervention. Nor as a matter of principle is it unlikely that a child assessment order will be made with respect to a competent child who may refuse to submit to assessment: it will depend on the circumstances.

 

[Whilst the statute says that a competent child who says no, is not compelled to participate in the assessment, that does not stop the Court making an order, it just means that at the point of arranging the assessment itself, the objection of a competent child will stop the assessment of that child and override the order, pace section 43 (8)

  1. Drawing matters together, a child assessment order allows for a brief, focussed assessment of the state of a child’s health or development, or the way in which he or she has been treated, where that is required to enable the local authority to determine whether or not the child is suffering, or is likely to suffer, significant harm and to establish whether there is a need and justification for any further action. The purpose of the assessment is to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. It is part of the process of gathering information so that any child protection measures can be appropriately calibrated. It is the least interventionist of the court’s child protection powers and is designed to enable information that cannot be obtained by other means to be gathered without the need to remove the child from home. It is not an emergency power and it may be particularly apt where the suspected harm to the child may be longer-term and cumulative rather than sudden and severe. The order is compulsory in relation to parents but not for a competent child who refuses to participate. The views of an older child are an important consideration when a decision is taken about making an order, but it cannot be said that opposition makes an order unlikely: it depends on the facts of the case and the nature of the risk and the assessment.
  2. Seen in this light, the circumstances of this case might be seen as a paradigm example of a case for which s.43 was intended. More than that, I would conclude that the evidence so clearly pointed to the making of a child assessment order that the judge’s contrary conclusion cannot stand. The outcome, by which the local authority was told to go away and think again after a process that had already hung over the family for a full year since the father’s release, fails to address obvious risks that now require careful assessment. The only remaining way in which the assessment can be made without the issuing of care proceedings is by means of a child assessment order. There is no purpose in remitting the decision, and I would therefore allow the appeal and make the child assessment order in the terms now helpfully drawn up by the parties.
  3. Finally, we would like to address the young people at centre of this case. We know that you will give the same serious attention to this order and the reasons for it that you showed when three of you, one now being an adult, attended the appeal hearing. Our order has only one purpose: to help to keep you safe. We know that the order is not what you wanted, but we believe that it is the very best way of resolving the present situation and of allowing you to get back to the things that you have been doing so well. Three of you have the right to say no, but we hope that you will allow the assessment to take place, as it will do for the youngest one of you, and that you will all do your best.