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Category Archives: case law

Interim care order – revision to the separation test

The Court of Appeal have decided a case called Re C (A Child: Interim Separation) 2020 and this adds an additional component to the test for separation, so all child protection lawyers, social workers and Guardians need to be aware of it.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/257.html

 

It builds upon another Court of Appeal case called Re C 2019 (I have not written about that one, because it was very difficult to ascertain whether it was intending to introduce new principles or was fact specific, this one is much clearer)

 

The test for interim separation (or continued separation) is now

“(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.

(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”

For the purposes of his decision in this case, the judge summarised it this way:

“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”

 

The 5th point is the new addition – that the LA must be able to set out to the Court what available resources could be put in place which might remove the need for separation.

 

It doesn’t need to be in a full-blown alternative care plan like full Care Orders and Neath Port Talbot, but I have found a useful approach to be

 

Imagine that the Court don’t grant removal and the child stays with the parent – what would that look like?  (TM my friend Becca Carr-Hopkins).  What would be your ingredients of the protection plan or written agreement or contract of expectations.  Then, in relation to those, what resources could the LA reasonably put in place to assist with each of these?  Having done that, the social worker, the lawyers, and the Judge can consider – would those manage the risks that are present, in full or in part? Would the parents realistically be able to comply with those requirements?

 

So it becomes not only a useful piece of information for the Court, but an actively useful analytical and decision-making tool for the Local Authority.  It helps hone down on ‘do we really need separation, or could we manage this risk another way?’

 

 

Turns to dust – vaccinations and confusion

This is YET another judgment in the Cestui Cue Vie litigation, this time about vaccinations.  And it has made my head hurt.

http://www.bailii.org/ew/cases/EWHC/Fam/2020/220.html

 

T (A child), Re [2020] EWHC 220 (Fam) (07 February 2020)    

 

The previous law on vaccinations of children who are in care, where parents object, is  “Don’t do it under section 33 of the Children Act 1989, make an application and let the Court decide”

 

[Section 33 basically allows a Local Authority who hold an Interim Care Order or Care Order, to take actions that they think are necessary to safeguard or promote the welfare of the child. In effect a veto/overule to parental objection]

MacDonald J in Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam):

 

 

33. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order

 

 

Vaccination is a hot-button topic, though not QUITE as much as it is in America, but still something that some people hold very strong views on, particularly the MMR vaccine and the theory (well and truly debunked) that it causes autism or can cause autism.  Still, it is something that parents often feel very strongly about.

 

In this case, the LA made such an application

Hayden J says

 

I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3) CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination

and

I consider that this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s.33(3) CA.

 

He considers the application anyway, because he identifies that if the LA had proposed to authorise vaccinations under s33, the parents would have made an application to block it under the inherent jurisdiction.

 

Why has this made my head hurt? Well, because we now have two High Court Judges, one who says ‘Oh, you HAVE to apply to Court, you can’t do it under s33’ and the second who says ‘you shouldn’t be bothering the Court with this, do it under s33’

 

So, if a parent in a case says  “I don’t want my child to have the MMR” and the child is subject to an ICO or a Care Order, what do you do?

 

I’m very grateful to Chris Barnes and David Burrows for helping me get this straight.  As best as I can tell, Hayden J’s decision that you should do it under s33 and NOT make an application binds Justices, District Judges, Circuit Judges. Court of Appeal or Supreme Court could overturn it.   And a High Court Judge should stick with Hayden J’s decision unless persuaded that a key binding or persuasive authority that should have been shown to Hayden J wasn’t.

If I had to guess at what would happen if the issue comes up before MacDonald J again, I imagine that he would agree that he is bound by Hayden J but without a deal of enthusiasm. I’d try to avoid it if possible.

(It is a bit like Referees and the FA Disciplinary Panel – if the Referee sees the scything tackle and gives a yellow card, the video panel can’t give a ban, but if the ref says he didn’t see it then the video panel can ban the naughty player.  Here, because Hayden J was taken to all of the relevant authorities, everyone else OUGHT to follow his decision. This arises from Colchester Estates v Carlton Industries 1984)

 

Where a decision at first instance has itself been considered by a second judge at first instance, I do not regard myself as free to depart from the second decision (unless persuaded that some binding or persuasive authority has been overlooked): Colchester Estates v Carlton Industries [1984] 2 All ER 601. 

 

From Futter v Futter and Others 2010   paragraph 3 https://www.bailii.org/ew/cases/EWHC/Ch/2010/449.html

 

So, the state of play is, vaccines are now authorised under s33, and the Court will only get involved if the parent makes an application under the inherent jurisdiction to prevent it.

 

Moving away from the big picture, I always find that a Hayden J judgment contains at least one masterful piece of prose, and this doesn’t disappoint.  Poor counsel for mum is faced with making an anti-vaxx argument based on research that has clearly not quite stood up to rigorous scrutiny.

  1. In his position statement, Mr Bailey, on behalf of M, particularises her views, in relation to her other children, in order to establish what he terms to be “the potential impact on T“:
      1. (i) X (22) was in pain for many years after receiving the Gardasil vaccination (HPV), and also led to her being hospitalised for a week. No diagnosis was ever made and still suffers pain today. She was also given 5 doses due to a nurse telling us it was perfectly fine to have extra doses. The recommended dose is 3.

(ii) After receiving vaccinations Y’s (11) development was delayed which has led to him having to receive growth hormone replacement. It was ruled out that his condition was genetic and to this day it remains a mystery as to why this has happened.

(iii) U (18), F’s son, was in good health growing up but now has a condition called Russell-Silver syndrome (SRS-a congenital condition). This was diagnosed when he was 8 years old;

(iv) V (16), F’s son, began fitting a week after having the first set of MMR vaccinations. He was subsequently diagnosed with West syndrome (severe epilepsy). V’s IRO has informed the parents that V no longer has this condition and no other diagnoses have been made. Currently, V is in a wheelchair, cannot walk, talk, or do anything for himself. He wears nappies 24/7 and self-harms by punching and biting himself. He is said to have a developmental age of a 6 month-old baby.

(v) Research (undisclosed for the purposes of this Position Statement) indicates that a. some vaccinations contain aborted human foetus matter and b. some vaccines contain other ingredients that the mother objects to.

(vi) If T is to have vaccinations then the mother would want these to be given separately as research (undisclosed for the purpose of this Position Statement) shows that multiple vaccines at the same time shock the system and some children go on to develop autism and other conditions. The mother believes that it is safer for T to be given vaccinations separately.

(vii) T is now 10 months old and is in very good health. Apart from a few colds (in foster care) he has not had any childhood illnesses in spite of not being vaccinated and has a strong immune system. Research (undisclosed for the purposes of this Position Statement) shows that babies and children who have a good healthy balanced diet with the correct nutrition build a healthy immune system and do not need to be injected with viruses and heavy metals.

(viii) The Local Authority once informed M than T had contracted measles, but to date this has never been confirmed. If this was in fact the case then M will say that this shows that T’s immune system naturally fought of the virus and his immune system is strong.”

  1. Very properly, Mr Bailey highlights, at (v) and (vi) above, that the research said to support these submissions is “undisclosed for the purposes of this position statement.” By this, Mr Bailey was signalling, I think, that he had not seen any such research. In any event, he did not produce any during the course of his oral submissions. Though attractively presented, the submissions are both tenuous and tendentious. They were supported by F, who read from a document which purported to say that some of the vaccinations contained “MRC-5, the genetic code of a human male.” I pressed F on this, as to what it actually meant, and, in particular, I asked him whether this was the point raised on behalf of M to the effect that some vaccinations contained “aborted human foetus.” He agreed that it was.

 

 

The representations continued, with mother’s counsel arguing that the LA had just taken a pro-vaccination stance generally, and had not applied thought to whether it was necessary in the case of this individual child

 

  1. Mr Bailey argued that the Local Authority had advanced its application by supporting the principle of immunisation generally. That approach would be misconceived. It was deprecated in Re SL (supra); in Re C and F (supra); and in LCC v A and Ors (Minors By Their Children’s Guardian) [2011] EWHC 4033 (Fam). Mr Bailey queried whether Dr Douglas had seen T’s medical records. Whilst the inference of his report was that he had seen the records, it was certainly not explicit. This led Mr Bailey to submit that Dr Douglas and, by implication, the Local Authority itself had not approached the issue with the necessary “individuation.” By this he meant that the merits and demerits of vaccination had been considered theoretically rather than with specific focus on this child.
  2. With respect to Mr Bailey, this point turns to dust in the face of the adoption medical report, which reveals Dr Douglas, in my judgement, to have a detailed and empathetic understanding of his patient. The report highlights:
      1. 2. Growth and development. T was born with moderately low birth weight (between 2 and 2.5kg) which is probably due to maternal smoking in early pregnancy. Low birth weight can be associated with poor growth and delayed development although he has shown good catch-up growth since birth and his development is within normal limits at present. However, his growth and development need ongoing monitoring and recognition of any problems such as decreased growth velocity, motor delay or speech and language delay should prompt early referral for assessment

 

 

I’m sure that there have been many occasions when I have been striving to make what I hoped was a good point, or at least a point, and the Judge could have retorted that my point has turned to dust.  (I can think of a hearing I did last year where Mr Braithwaite of counsel helpfully pointed out that I’d got something wrapped entirely round my neck, but in his usual charming way).  I hope that I never have to hear that being said in a judgment.

 

Is this the end of the Cestui Cue Vie case? Surely not.

 

 

 

 

I must confess I still believe

 

It is such a quintessential movie moment, the killer slinks into the confession box and breathlessly tells all to the priest on the other side who fumbles nervously at his rosary – he knows the truth, but can never tell…

This doesn’t come up very often in family law – insert your own withering remark about Catholic priests here if you wish. This, however, is a case that not only relates to it, but helpfully gives us a Victorian era criminal law authority for the legal sanctity of the confession box.

(It is also timely because I had to break off from House of Games last night for a short debate as to whether or not Reverends who appear on television HAVE to wear the dog collar even when they are on a game-show, so ecumenical matters are at the forefront of my mind this week)

 

Lancashire County Council v E & F [2020] EWHC 182 (Fam) (04 February 2020)
http://www.bailii.org/ew/cases/EWHC/Fam/2020/182.html

 

This arose from a case in which the mother spoke to the members of her Jehovah’s Witnesses Church about allegations that the father had sexually abused the children.  The Jehovah’s Witnesses Community also spoke with the father about these matters and it seems carried out their own investigation.

Within care proceedings, the Local Authority wished to see those notes.  The Jehovah’s Witnesses Community opposed that, and when a witness summons was issued sought to set it aside.  They were willing to provide the records relating to the conversations that they had had with the mother (who was consenting to the production) but not those with the father.

  1. Mr Achonu argues there is a duty of confidentiality by elders or Ministers of religion and they are unable to disclose information which has been communicated to them in the course of confidential “spiritual counselling” without the express consent of the individuals concerned. He says that that duty of confidentiality is protected by article 9 of the European Convention on Human Rights (ECHR). In the light of this argument he says that A and B are prepared to disclose information given to them by the Mother, because she has provided her consent, but not by the Father because he has not given consent. It is not at all clear how in practice this would work, given that much of the information sought relates to both of them. However, this issue is somewhat academic given the conclusions I have reached in this judgment.
  2. Mr Achonu argues that A and B are under a spiritual duty not to disclose confidential religious communications and that if such confidence is breached then individuals might no longer confide in their ministers.
  3. He relies by analogy on the approach in the Police and Criminal Evidence Act 1984 (PACE) Schedule 1, and the provisions therein, which protect confidential information, including that relating to spiritual counselling in s.12 (b), and a balancing exercise has to be undertaken under Schedule 1 of PACE when disclosure of such records is sought. He argues there is an analogy with the position in R v H 2019 1 WLR 3744 where the Court of Appeal refused to order the disclosure of discussions between an offender manager and an offender. The Court said that it would only order such confidential discussions to be disclosed if there was a very good reason, because it would be contrary to public policy to do so. I note that at [39] the boundaries of the confidentiality being asserted are expressly said to be “apart from child protection issues….“. Therefore this case is of no assistance to Mr Achonu on the facts of the present case.

 

Ouch.

  1. R v H at [53 states];
      1. Firstly, it would in our view be contrary to public policy to breach the confidentiality of discussions of the kind save for very good reason. Such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be; and the internal rules of Camden social services (or of any other local authority’s officers) are not binding in the courts; but we regard them as well drafted, sensible and worthy of respect. There is a distinction between disclosure necessary to avoid imminent future criminality (in particular a threat to someone’s life or safety) and the obtaining of admissions to past offences. It would be extremely unfortunate if convicted defendants (whether young or adult) were deterred from speaking to those charged with their supervision or rehabilitation until any appeal against conviction had been dealt with.
  2. Mr Achonu argues that the communications with A and B, and the documents sought under the witness summons, should be treated in the same way as a religious confession. He relies on R v Hay (1896) 2 F&F4, which is cited in Archbold at 12-21, as support for the proposition that; “the position of priest and penitent has not been authoritatively decided, but the tendency of judicial dicta is that, while in strict law the privilege does not exist, a minister of religion should not be required to give evidence as to a confession made to him.”

 

Well, if you don’t think we’re about to look at R v Hay and find out what it is all about, then you don’t know me very well.

 

In R v Hay, a priest was found to have a stolen watch, and had thus (unwittingly received stolen goods). The police wanted to know who had sold him the watch and the priest refused.  At a trial, the priest had to give evidence. He refused to answer questions as to who had sold him the watch.

The Judge said :-

I have already told you plainly I cannot enter into this question. All I can say is you are bound to answer. From whom did you receive that watch. On the ground I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose; but you are asked to disclose from whom you received stolen property on the 25th of December last. Do you answer it or do you not?

When the priest continued to refuse to answer the Judge sent him to prison for contempt.

 

The decision of the Court was that whilst the priest could legitimately refuse to answer any question about what had or had not been said to him in the confessional, he could not extend that beyond it even if it were about a parishioner who came to confession. The watch had not been sold to him in the confession box, so the protection did not apply.

I’m afraid I can’t find a link to the judgment, but the Wikipedia page gives more detail for those who are interested.

https://en.wikipedia.org/wiki/R_v_Hay

 

It immediately seems to me that the church was on a sticky wicket trying to rely on R v Hay as authority for not disclosing the evidence, because the case is very specific that it applies only to evidence obtained in the confessional.

Mr Achonu argues that the duty of confidentiality is not limited to the confessional but can have a wider remit. He says that any information revealed during spiritual counselling is subject to the duty of confidentiality. It is not entirely clear to me what would be covered by spiritual counselling, but given that A and B are refusing to produce any information about what they knew or what investigations were made unless consent is given, it would appear to be being argued that all information relating to the alleged sexual abuse was related to spiritual counselling and thus confidential.

 

Hard to be sure when you can’t see the documents to see what was and wasn’t spiritual counselling, but it seems a thin argument. The thinness of the argument is emphasised when Canadian authorities are produced in aid. Unless Lancashire is suddenly transplanted to Quebec, it is going to be of limited value.

  1. Mr Achonu relies on a Canadian Supreme Court case R v Gruenke [1991] 3 RCS 263. The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights. The approach of the Court was not to apply a strict approach to what was a confession, see [291], but to look at all the relevant circumstances and apply what is known in Canada as the Wigmore criteria. These are set out at p.284 as follows;
      1. 1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

  1. These criteria are very similar to the approach taken in article 9(1) and (2). The communications must fall within the said religious duty of confidentiality and if they do so any order to disclose must meet a proportionality test.

 

Given that the purpose of disclosure is to assist the Court in deciding what harm, if any, the children suffered and thereafter to make decisions about their welfare, it is hard to see proportionality coming to the aid of the Church here.

 

 

Conclusions

  1. There are a whole series of reasons, some overlapping, as to why the witness summons should be upheld and disclosure ordered and why I reject Mr Achonu’s submissions.
  2. Firstly, there is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. It appears that the allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion. It is possible that at some point the Father “confessed”, but I have no evidence this was the case. In any event, the investigation cannot itself amount to a confession. Therefore, to the degree that there is a duty of confidentiality in relation to a confession, which I am prepared to assume on the basis of R v Hay, but not decide, it would not arise here.
  3. Secondly, the material that the Council seeks also does not, on the evidence, amount to “spiritual counselling”. There was an investigation into E’s allegations. The whole focus of Mr Achonu’s submissions on this point appears to me to be misconceived. To describe the material sought as being the product of spiritual counselling is to focus on the Father and concerns about his religious confidentiality, rather than on the child. The elders appear to have been neither carrying out an investigation into the child’s allegations and how she could be protected, nor providing spiritual counselling to the Father. Mr Achonu’s submission in my view provides a plain example of his clients, with or without the agreement of the Congregation more widely, putting the Father’s interests above those of the child.
  4. Thirdly, and in any event, the Congregation’s own policy, certainly that of 2013 and probably the 2018 version, indicate that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, then it “will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children.” In the 2018 policy at para 5, it says that the elders will be told to report the matter if the child is still at risk of abuse. It seems highly likely that E was still at risk of abuse up to July 2019, yet the elders did not report the allegations.
  5. The stance that Mr Achonu has taken in this case, namely that the material will only be disclosed when the individual consents, is not reflected in either of the policy documents and he could give me no support for that approach.
  6. There does appear to be a strong suspicion that the Congregation’s own published guidance, both 2013 and 2018 was not followed, not just by A and B, but also by more senior figures in the Congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.
  7. To the degree it is argued that although there might have been a requirement under the policy to report the allegations earlier, that does not mean that the information should now be disclosed, I reject that suggestion. The information held by the Congregation has the potential to be highly relevant both for the future protection and wellbeing of E and F, but also of other children. The information is likely relevant to three key questions for the Court – whether the threshold findings of fact in respect of the Father are made out; whether the Mother failed to protect E; and what future risk the Father poses to E if she lives with her Mother. It is also potentially highly relevant to whether the Father poses a risk to other children. This is a situation which is concerned with future child protection, and not simply past criminality, it therefore falls on the other side of the line applying the approach in R v H at [53].
  8. Fourthly, Mr Achonu accepted that whether the duty of religious confidentiality is examined through the common law or article 9 it is not an absolute duty. This is clear from the caselaw, R v H, R v Hay and the words of article 9(2). Respect for A and B’s religious beliefs is given by article 9(1), but that is qualified by article 9(2) including in the interests of public safety, the protection of health and morals, and the protection of the rights and freedom of others. It could not be more obvious that a freedom to manifest ones religious beliefs must give way to the need to protect a child from sexual abuse. That balance is to some degree reflected in the two policy documents, but has not been reflected in A and B’s approach to this case. The evidence points inexorably to A and B having protected their and the Father’s religious beliefs at the expense of the protection of the child.
  9. Fifthly, it therefore follows that the witness summons and the requirement for full statements from A and B, together with the documents sought are a proportionate interference in A and B’s right to manifest their religion. The interference in their religious rights is in my view relatively slight, given the terms of the two policy documents and the fact that the information does not appear to have been given in a confession or in any real sense as spiritual counselling. The other side of the proportionality balance is that the need for the protection of E and F, as well as other children is a highly weighty if not overriding factor. 

 

 

Notification of fathers or family in voluntary adoption cases

 

 

 

The Court of Appeal have given a judgment in three linked cases where a mother wished to arranged for her child to be adopted and the Court had to decide whether or not to inform the father/relatives

The facts and details about the 3 cases are at paragraph 90 onwards of the judgment. In the first, the Judge had decided not to tell the father and the Court of Appeal overturned that, in the second the Court decided in care proceedings not to tell the grandparents of the child’s existence and the Court of Appeal upheld that, and in the third the Judge decided that the father should be told and the Court of Appeal upheld that. Three very different sets of facts and three different outcomes, but helpfully the Court of Appeal analyse all of the relevant law and distil from it the principles and good practice to be applied in such cases.

 

A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/41.html

 

The new bit of law in this case is the Court of Appeal decision that when DECIDING whether or not a father or relative should be notified, the child’s welfare IS NOT the Court’s paramount consideration (or the Local Authority’s when they are making the decision). The Court is not deciding whether the child should be adopted (when welfare IS paramount) but who should or should not be told.

 

 

 

82.As noted above, there is uncertainty about whether what I have described as the core principles (welfare paramountcy, the prejudicial effect of delay and the welfare checklists) apply directly to a decision about notifying a father or relatives about the existence of a child or of proceedings. In a sense, not much turns on this: child welfare, prompt decision-making and a comprehensive review of all relevant factors are central to the notification decision, regardless of whether they are directly mandated by statute. Nevertheless, decision-makers are entitled to know whether their decision should place child welfare above everything else or not, and a correct formulation of the principles reduces the risk of error in decisions at the margins.

 

 

83.In the light of the observations in Re C v XYZ County Council, it is not surprising that a number of the later first instance decisions recite that the core provisions are engaged, or that a number of the parties before us so submitted. However, after closer examination, I am satisfied that the decision about notification does not directly engage these provisions. My reasons are these:

 

 

 

  1. So far as the CA 1989 is concerned, the decision is not one “relating to the upbringing of a child”. It is a decision about who should be consulted about such a decision.

 

  1. The same applies to the ACA 2002. The decision for the local authority and the court is not one “relating to the adoption of a child”, but a decision about who should be consulted about such a decision.

 

  1. The terms of s.1(7) ACA 2002, which apply only to decisions by the court, do not lead to a different conclusion. The subsection is not without difficulty – see Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616; [2007] 2 FLR 1069 at [19-24] – and I cite it again for convenience:

 

 

“In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

 

 

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

 

 

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

 

 

but does not include coming to a decision about granting leave in any other circumstances.”

 

 

Although widely drafted, sub. (a) does not cover the paradigm situation where a Part 19 application has been made, nor is that an application for any form of leave as mentioned in sub. (b). And even if there are proceedings of the kind mentioned in sub. (a), it cannot properly be said that every case-management decision within those proceedings is one to which welfare paramountcy applies. Such decisions are more apt for the application of the over-riding objective in Part 1 of the FPR 2010, which requires the court to deal with cases justly, having regard to any welfare issues involved. In my view the correct interpretation of the expression “coming to a decision” in s.1(7) ACA 2002 means coming to a decision about the substance of the application, whether it be an adoption order, a placement order, or a contact order. It does not include coming to a decision about who should and should not be informed of the existence of the child or of the proceedings themselves.

 

  1. This conclusion is consistent with the established distinction between decisions that are welfare-paramount and those that are not. This is made explicit in the cases reviewed at paras. 48-50 above and the corresponding silence in the entire line of authority preceding Re C v XYZ County Council is equally significant. To take one example, the decision of the House of Lords in Re D [1996] about withholding material in confidential reports did not refer at all to the equivalent provision to s.1 ACA 2002 in the Adoption Act 1976 (which by s.6 placed a duty on the court and the local authority to give first consideration to the need to safeguard and promote the welfare of the child). Likewise, in Re X [2002] this court determined the issue of whether the parents should be told that the foster parents were adopting the children by striking a balance between the competing interests, not by prioritising child welfare. This approach continued after the enactment of the ACA 2002, as can be seen in the comprehensive survey of the law conducted by Munby J in Re L [2007], which makes no reference to s.1 of the Act, to welfare-paramountcy or to the welfare checklist.

 

  1. Re C v XYZ County Council, while plainly correctly decided, is not binding authority on this issue, for the reasons I have given above.

 

  1. The later decision of this court in Re A [2011] does not support a welfare-paramountcy test.

 

  1. Lastly, there is no reported decision of which I am aware in which the outcome has been dictated by the court finding that the welfare of the child trumps all other considerations; instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.

84.For these reasons I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.

 

The Court of Appeal quote with approval the joint ACDS /CAFCASS procedure in relation to relinquished children. You can find that in a drop down menu here, https://www.cafcass.gov.uk/about-cafcass/policies/ but thankfully the Court of Appeal set out the key aspects

 

Urgency and thoroughness of procedure

86.A local authority, faced with a baby that may require adoption, either because a mother wishes to relinquish the baby for adoption or because there are proceedings with a plan for adoption, will be acutely aware of the need for a speedy decision. Where the mother requests confidentiality, it will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother’s consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.

 

 

87.I have referred already to the Cafcass/ADCS protocol, which has been taken up by a number of local authorities. In the proceedings before us, which involved three local authorities, the parties collectively filed an agreed statement of the steps that will need to be taken by the local authority in cases such as these. It is not for this court to determine local authority procedures but I record the parties’ agreement for the help that it may give to those facing these situations.

“1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child’s father or extended family:

 

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

◦The decision to place the child for adoption.

◦The reasons for not notifying the child’s father, or extended family, where possible gathering details about the father’s background and that of the family.

◦The mother’s background and information about her family.

◦Any cultural issues and how they have affected the decision made by the mother, or mother and father.

◦The implications of adoption for the child

◦The legal process required to achieve adoption

◦Other possible options for the care of the child

◦The adoption counselling service and how to access it

◦Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

 

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

 

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

 

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with ‘foster for adoption’ / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

 

 

 

  1. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.

 

 

 

  1. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother’s claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father’s family.

 

  1. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.

 

 

 

  1. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.

 

 

 

  1. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.

 

 

 

  1. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority’s position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members.”

88.In cases where an application to the court is issued, the court should be equally alert to the need for urgency, bearing in mind that time has already passed in preparation for the application and the hearing. The following matters will require attention:

 

 

 

  1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

 

  1. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children’s Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

 

  1. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian’s analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

 

  1. Receiving the mother’s account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

 

  1. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

 

 

The Court of Appeal then helpfully summarised the law as derived from their very careful analysis of the relevant authorities

 

89.The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.

 

 

 

  1. The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

 

  1. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

 

  1. The decision should be prioritised and the process characterised by urgency and thoroughness.

 

  1. The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

 

  1. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

 

  1. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

 

 

(1) Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

 

 

(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

 

 

(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

 

 

(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

 

 

(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother’s wish would always prevail at the expense of other interests.

 

 

(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

 

 

(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child’s existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

 

 

(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child’s permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child’s established carers or to the loss of an especially suitable adoptive placement.

 

 

(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.

 

  1. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.

 

Adoption as orthodoxy

 

 

 

I note that adoption is once again becoming a political football, with Government spokespersons holding it up to be the gold standard for children. We have been here before, and no doubt we will be here again.

This judgment from a Circuit Judge is therefore both timely and sadly timeless. None of what is said within it is newly binding (save that the Judge carefully and accurately records the statutory and regulatory sources, and the caselaw from which her analysis derives, and that some of the matters within it are long-standing regulations which have not been forensically inspected by a Court before) but I think all of what it contains is powerful and an important reminder of the stakes in which we are dealing when the Court is asked to make decisions about children’s futures.

It is also a case involving a decision about wasted costs in a highly flawed Placement Order application, and in which counsel who tried to be clever about the word ‘reprehensible’ received something of a lesson.

The case was heard by Her Honour Judge Lazarus (and my fingers in typing almost wrote ‘as she then was’ as though I had slipped forward in time a few years)

A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020)

https://www.bailii.org/ew/cases/EWFC/OJ/2020/B2.html

 

The case involved a a girl of 4, whose parents had accepted that the threshold criteria were crossed and that they could not care for her. The only realistic options before the Court were a plan of adoption or a plan of long term fostering. The Local Authority sought a Placement Order and thus a plan of adoption.

 

An important issue in this case was how large an immediate and extended family this child had, and the careful need to consider the impact on the child of maintaining or severing relationships with that family.

 

  1. Another key element of that background, as already mentioned, is the very large family-centred tight-knit active family group that she belongs to. This already holds out the prospect of meaningful relationships with at least 29 individuals in this country in her immediate family (parents, siblings, grandparents, nephews and nieces) let alone the further dozens in the next ranks of her extended family (aunts, uncles, cousins), many of whom are close in age to A. Drifting too far from being able to create and maintain those relationships, and from some familiarity with their traditions, would be highly detrimental to A and the prospects of a future richly populated with loving relatives and their shared heritage. Supporting these aspects, and acknowledging the challenges given her characteristics, is very important to A’s long-term welfare.

 

 

The Judge made it clear that she was not critical of the Local Authority for considering an option of adoption

 

  1. To be clear, there is no criticism of the making of an application for a placement order itself. There would have been scope for this complex and finely balanced argument to be made properly to the court, and for the court to consider all the aspects of the issues applicable to such a serious step in order to determine the appropriate outcome

 

However, despite it being identified once the LA final evidence was filed that it was lacking in the necessary carefully balanced analysis and argument, and the Local Authority being given further opportunities to remedy that by addressing clearly identified missing issues in addendum evidence, the requisite quality of evidence never emerged. The LA had three such opportunities, including on the first day of the hearing, and matters ended up unravelling completely during the social work evidence.

 

  1. However, what analysis there was emerged as incomplete, partial, unsupported by sufficient evidence or reasoning. ‘Permanence’ was lauded above all else, with little rationale or substantiation or research to underpin that claim and the assumptions and assertions made.

 

 

  1. What analyses there were hardly touched upon the disadvantages to A of adoption and effective severance from her birth family, or the problems posed by her diagnoses in terms of any attempts to mitigate those losses.

 

 

  1. Negative observations in relation to the family were over-emphasised based on the slightest of evidence, and positive issues for which there was ample and good evidence were hardly mentioned if at all. Whole factors that would not sit easily with the plan for adoption were almost completely ignored. It was a skewed and highly partial approach.

 

 

  1. Ultimately, such an approach not only undermines the local authority’s own case for adoption because the good and substantial evidence and analysis required by the case law is simply absent, but it does not serve the child well nor assist the court.

 

 

  1. I entirely accept that there are, sadly, many cases where the drastic and life-changing severance of legal and other forms of relationship with birth families are justified. Often it is where the incapability of family members to meet a child’s needs or the risks of significant harm are very great, and where the benefits to the child of ongoing relationships with birth family members are scanty, being of poor quality, negative impact or largely non-existent in terms of any obvious positives or likely continuation.

 

 

  1. Here, the contrast with such situations was very great, with a very large loving connected family group holding positive respectful family values, celebrating a distinct culture and heritage, highly co-operative, admitting their area of parenting failure but otherwise forming a wide group of highly functional happy secure close adult and child family members, and offering consistent positive committed loving relationships to A, and in particular with siblings, nephews, nieces and cousins who are close to A’s age.

 

 

  1. 63.   This required careful, nuanced, thoughtful and balanced analysis. Instead, listening to the social worker’s oral evidence was a painful experience. Almost none of those benefits and contrasts were touched on at all. No research was referred to in her documents or oral evidence. It was difficult to get her to focus on A’s needs and characteristics, as opposed to reciting generalised assertions about adoption. It was clear that she initially thought she had fully reviewed A’s welfare interests, even though her document was largely a cut-and-paste copy of the initial CPR with a few further paragraphs added and a slightly expanded tabular discussion of various pros and cons.

 

 

  1. The process of cross-examination increasingly revealed glaring gaps and distorted arguments. It was telling that, despite the local authority claiming that it grasped that this was a complex and unusual case and that all the relevant issues had been considered, in fact very few of the relevant complexities were set out or analysed in any document and not even in this social worker’s re-amended document. It was further telling that, when the possibility of a contact order that would help to support A’s family relationships and her exposure to her culture and heritage was raised with the social worker, her first reaction was not to consider it in terms of A’s needs and characteristics but to protest that this would narrow the pool of prospective adopters.   A prime example of the tail wagging the dog.

 

 

  1. Overall, the local authority’s evidence was an effective demonstration of confirmation bias. The virtues of the permanence and security of a ‘forever family’, and which in abstract principle I do not doubt, nonetheless were sketchily asserted and additionally appeared to blind the social workers to the need to address those specific aspects of A’s needs and characteristics that did not fit with that proposal, and prevented any real analysis of permanent estrangement from her birth family.

 

 

  1. In particular, there was no evaluation of how that would work in combination with her likely cognitive difficulties, which would undoubtedly make it far harder if not impossible for her to benefit from sparse or indirect contact, or from using indirect resources such as the internet, language lessons or photographs to keep her in touch with her heritage and her family’s native languages and practices. There was no consideration whatsoever that there would be a high likelihood of adoption realistically resulting in an effectively drastic end to A’s ability to grasp aspects of her heritage, experience the warmth and breadth of her birth family, speak and understand some words of her parents’ native languages, feel and benefit from the sense of belonging to this large loving family with rich and coherent traditions – even if she could not live with them.

 

 

  1. The local authority’s approach was starkly epitomised in the following quotation and sole rationale in the initial ADM report: ‘given A’s age the only permanency option viable for A is adoption’. This assertion was made without any supporting analysis, let alone consideration of what other options might exist and how any option does or does not meet A’s needs and welfare interests.

 

 

  1. This flawed approach begs so many questions of this local authority. How is it that adoption appears to have become a kind of orthodoxy that requires inconvenient matters to be ignored and others to be twisted into its support? Is there an endemic automatic approach to a younger child’s age which results in a simplistic tick-box response instead of a careful analysis of her particular welfare interests? What sort of positive qualities would a birth family need to offer to be able to dislodge this approach to adoption and trigger a more balanced analysis and a preparedness to consider and address the full range of options? How has this local authority not followed the clear guidance of well-known law, and so failed to provide the evidence with which to ask the court to properly determine such a drastic and serious intervention in the life of this child?

 

 

  1. Ultimately, even with the further opportunities that the local authority had following the adjournment in November plus the further enhancement of the social worker’s written efforts at the outset of this hearing, the exposure of these failings led the local authority to perceive that it had again manifestly failed to meet its obligations and thus it withdrew its second placement application at this adjourned final hearing. The necessary evidence and reasoning that would have permitted this court to carry out the difficult balancing exercise had simply not been properly provided.

 

 

  1. These observations, and the local authority’s failure to meet these requirements of well-known law, become particularly pertinent given the local authority’s fundamentally flawed application for a placement order that led to the first final hearing being adjourned.

 

 

It is clear from what is said that both the original Child Permanence Report and the amended later versions were significantly flawed. The Judge summarises the statutory guidance and reminds us of the purpose of the Child Permanence Report – this is the document that fundamentally informs the Agency Decision Maker (the senior manager at a Local Authority, usually Assistant Director or Director level) as to the relevant information that leads that Agency Decision Maker (ADM) whether or not to make a decision that adoption should be the Local Authority plan. (An individual social worker cannot decide that adoption is the plan – they can recommend it to the ADM, but it is the ADM who decides). Therefore, the information in the Child Permanence Report (CPR) must be accurate, it must be fair, it must be balanced.

 

 

  1. The Statutory Guidance on Adoption provides that information must be accurate and distinguish fact from opinion:

 

1.17. Reports should be legible, clearly expressed and non-stigmatising. The information should be accurate and based on evidence that distinguishes between fact, opinion and third party information. The information should be checked to ensure that it is accurate and up to date before it is submitted to the adoption panel.

 

 

  1. The guidance goes on to explain why the accuracy of the CPR is so important:

 

2.64. The accuracy of the CPR is essential, since it will not only form the basis on which decisions are made about whether the child should be placed for adoption but will also assist the agency in matching the child with an appropriate prospective adopter, and will be the source of the information about the child on which the prospective adopter will rely. In due course the child, on reaching adulthood, will be able to request a copy of the CPR under the AIR and may have to rely on this document as the principal source of information about their pre-adoption history.

 

 

  1. The Court of Appeal has emphasised the legal requirement for the CPR to contain an analysis of all relevant placement options, including the reasons why adoption is the preferred plan. In Re B (care proceedings: proportionality evaluation) [2014] EWCA Civ 565, [2015] 1 FLR 884, concerning a successful appeal against a placement order, Ryder LJ observed that the CPR “ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated … That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made.”

 

 

 

 

  1. In Re S-F (a child) [2017] EWCA Civ 964 the Court of Appeal highlighted the need for reasoning to be specifically related to the child concerned:

 

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for the child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

 

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.’

 

 

There are regulations – The Restriction on the Preparation of Adoption Reports Regulations 2005 AND Adoption Statutory Guidance designed to ensure that this is the case. Pivotal amongst these is that the author of the Child Permanence Report must be qualified to write one, and must certify in the report whether they are so qualified, or whether their manager who is so qualified has supervised them in the writing of it. The qualification is three years of child social work, including direct experience of adoption work.   (In short, a social worker who is in the process of learning or has no direct experience of adoption work can only write the CPR if their manager (who HAS such experience) supervises them in the writing process. And by implication, as the manager has to sign off on the report that the manager is signing to say that the report does all it should.

  1. The guidance also sets out the expectations of the role of the supervisor:

 

1.15. For those individuals who are being supervised, their work should be supervised in accordance with their particular skills, experience and development needs. It is not necessary for the supervised social worker to be under the direct line management of the supervising social worker.

 

1.16. Where reports are being prepared by social work students, independent social workers or social workers who do not have the necessary experience, the draft report should be considered and discussed during supervision and signed off by a social worker with the necessary experience before the report is submitted to the adoption panel, another agency, or the court.

 

1.18. The person who prepares the report should sign and date it and indicate how they meet the requirements of the AAR. Where the person has been working under the supervision of a suitably qualified social worker, that social worker should sign the report as well, indicating the capacity they are working in and how they meet the requirements of the AAR.

 

 

In this case, the social worker was not suitably qualified, but instead of checking the box to say that she was not and having her manager sign to certify that it had been prepared under supervision simply checked the box saying that she was qualified, which she was not.

 

  1. Page 3 of the CPR specifically asks the author to confirm that they are suitably qualified under the Regulations to prepare this report. There is a numbered footnote next to that question, suggesting that further information on that point was available to the author while completing the document. The social worker’s response was “YES”.   The social worker has since explained that claiming that she was suitably qualified was simply an administrative error, an oversight. She should have marked NO, as she does not have the requisite experience under the Regulations.

 

 

  1. When the local authority was asked at court on the first day of the November hearing whether the social worker was in fact appropriately qualified and to provide details of her direct adoption experience the local authority’s response was that she does not have the requisite experience but “was supervised”.

 

 

  1. The space provided for details of the supervisor to be given has been left blank, which boxes also appear on page 3. It has been suggested that this is because the form uses a drop-down box format and that in clicking on YES the subsequent boxes did not then appear in order to be completed.

 

 

  1. However, I note that both the social worker and her team manager provided their signatures in the relevant boxes on page 3. They would both have had the opportunity and should have seen on the same page that they were signing, that the relevant boxes in relation to the Name and Signature of the supervisor were blank, and that the social worker had wrongly confirmed that she was a qualified person under the Regulations.

 

 

  1. I also note that in his statement the Director of Children’s Services referred to two individuals said to have supervised the social worker to the satisfaction of the relevant Regulations: her service manager and her assistant team manager. He claims that the supervision involved: ‘initial planning… including identifying who needed to be seen and interviewed, reviews of previously completed CPRs to inform the process of completion of the index CPR, and discussions about the conclusions of the same.’

 

 

  1. There are no details given of the capacity of either of these two individuals to fall within the relevant supervisor category, or of which of them carried out what supervisory tasks and exactly how that satisfied the regulations. There are no notes or records provided of supervision sessions. Tellingly, there is no assertion in his statement that either of them read the report or considered its contents beyond ‘discussions about the conclusions’. Clearly, neither of them signed the CPR, even though, if supervision were being adequately conducted, they would have expected this to be asked of them.

 

 

  1. It is clearly possible that the local authority may have committed a criminal offence under section 94 Adoption and Children Act 2002 and the Preparation of Adoption Reports Regulations 2005, but I cannot conclude whether that is the case or not. I note the Director’s refutation of this accusation. This is not the tribunal in which a summary offence is tried. I have not been provided with sufficient information to assist with any safe conclusion either way, nor would it be proportionate in the circumstances of this case to conduct an examination of all the background facts and the detailed nature of the supervision said to have been provided.

 

 

  1. At the very least, this ‘oversight’ was therefore missed by four people: the social worker, her team manager, her assistant team manager and her service manager. I am driven to suspect, but cannot properly put it higher than suspicion, that this oversight may possibly have been a consequence of ignorance of the requirements, the Regulations and of this offence.

 

 

  1. Additionally and significantly, adequate supervision should have identified the numerous deficiencies in content and analysis that are now admitted by the local authority.

 

 

  1. It also remains unclear who in the local authority holds the position of agency advisor as the individual with overall responsibility for quality assurance of the CPR, and whether this document was ever seen by this individual. This again begs the question as to what checking systems are in place, and how such an inadequate report, written by a social worker who did not have the experience required by law to write such a report, was permitted to be submitted to the ADM.

 

The CPR, as well as missing significant information and a balanced analysis, contained within it assertions as though they were fact, when the LA knew that the parents disputed those assertions and were not asking the Court to make findings. That sounds complex, so let’s unpack it

 

If there’s an allegation in proceedings that daddy hit Jack with a stick, then those allegations become a fact if :-

(a)Daddy admits it

(b)Daddy is convicted of it

(c)The Local Authority invite the Court to find as a fact that it happened and the Court, having tested the evidence does so.

 

 

In the absence of (a) or (b), if the Local Authority want to be accurate in the CPR they say “There is an allegation, yet to be proven, that the father hit Jack with a stick, the father denies it saying ___________, the evidence that the LA rely on that it happened is ___________ and the Court will be asked to find this as a fact”OR “There was an allegation made on _____ about physical mistreatment, this is denied and the Local Authority accept that there is not sufficient evidence for the Court to be asked to make a finding”

To simplify even further – this is the LA having their cake and eating it. Relying on the allegation to persuade an ADM that adoption is the plan, without going to the effort of proving it. This is WRONG.

 

  1. In addition to the above acknowledgements, it is also the case that the CPR contains much information presented as fact (for example pages 18-19) even though the local authority should have been aware it was disputed by the parents and it was not pursuing findings in respect of the disputed issues. This is particularly concerning given that paragraph 2.64 of the Guidance emphasises the need for accuracy, and that a CPR is often an important and sometimes sole source of information for a prospective adopter and for the child (see 2.64 set out at paragraph 82 above).

 

It is astonishing really that this needs saying, but it clearly does. As a Local Authority, if you are putting a disputed allegation onto the balancing scales to make decisions, then you need to seek to PROVE it. If you have decided you don’t think you can prove it, or that it isn’t proportionate to ask the Court to do so, then you DON’T GET TO PUT the allegation on the scales. Put up or shut up.

 

 

The ADM doesn’t escape condemnation

 

AGENCY DECISION MAKER’S DECISION –

 

 

  1. Given the manifest failures to comply properly with the Act and the Regulations and applicable guidance and case law in relation to the CPR, it was clearly not possible for the initial ADM to have made a valid and lawful decision based upon that material (Re B (Placement Order) [2008] supra, quoted in paragraph 78 above).

 

 

  1. It is also plain that the ADM in any event in her own right failed to comply with the relevant law and guidance in the decision dated 12 September 2019. The decision is set out in nine paragraphs which summarise the background history and then concludes with a single sentence as the only analysis or rationale for the ADM’s decision: “However, given A’s age the only permanency option viable for A is adoption”.

 

 

  1. This is shockingly poor and in breach of the relevant law and guidance. In particular:

 

–         The ADM failed to consider whether the social worker was permitted to prepare the report under The Restriction on the Preparation of Adoption Reports Regulations 2005.

 

–         The ADM failed to identify any arguments for or against adoption or long-term foster care, save for A’s age, and failed to give any reason for the decision, save for the child’s age.

 

–         The ADM’s sole reason appears to amount to an orthodoxy or set policy based on age alone and showed the local authority had failed even to consider long-term foster care as an option at all.

 

–         The ADM failed to consider any of the factors in the welfare checklist save for A’s age. This excluded any consideration of A’s background and identity, the impact of her needs and developmental issues, her relationships with her relatives (not only her parents but siblings and wider family), and the value of those relationships continuing.

 

 

 

  1. The Director of Children’s Services claims in his statement that the ADM had, in fact, taken the full welfare checklist into account, but had simply failed to record that exercise. He also accepts that the key arguments for and against adoption were not articulated in the report, and concedes that these failures to meet requirements resulted in a flawed placement application. In my judgment, his concessions do not go far enough and do not even reflect the local authority’s own guidance that was in existence at the time of the decision.

 

 

Nor does the Local Authority legal department

 

   It is the local authority’s legal team who will have taken the relevant steps to issue the placement application. In doing so, the lawyer handling this case should have read the relevant documents underpinning the proposed application. This should have immediately caused the lawyer to flag concerns relating to the adequacy of the CPR and the ADM decision, and whether the ADM could have made a lawful decision on the basis of the CPR.

 

 

  1.                      This should have led to the matter being referred, if it had not been referred already, to the agency advisor for review of the documents in question.

 

 

  1. It also should have led the lawyer to refer the matter back to the social work team, service manager or other senior member of Children’s Services in order to rectify the situation.

 

 

  1. The issue of a placement application should not become a rubber-stamping exercise, but a rigorous examination of whether the legal requirements for such a serious application have been met

 

I would completely agree with this. It might to implement it properly, need an adjustment of Court timetables. A Placement Order application is a huge piece of work, and because generally the social work evidence comes in right against the deadline if not already late, a Local Authority lawyer is working frantically to get the application issued as soon as possible, so that other parties can respond and the court timetable does not get derailed. We need to make time to do what is such a critical job properly, even if that means having to seek to vary the Court timetable to give it the time it needs. Child Permanence Reports are dense documents, the application form for Placement Orders is, as any Local Authority lawyer will tell you, the absolute WORST form to fill in, you’re doing it at the same time as checking all of the final evidence and care plans. It takes more time to do right than we are able to give it. And what normally has to give there is that the task is delivered in the time you’ve got, not the time you need.

(None of this is intended to be excuses, it is context. Similar things are true at every stage of this flawed process – everyone is working to the time they’ve got, rather than the time they need. Sometimes we need to stand up and say ‘we need more time please Judge, because…’ and let the Judge decide)

 

As a result of the flaws in this case, the Court considered whether to make a wasted costs order (i.e that the Council should pay for everyone else’s legal costs)

They were ordered to pay the costs of one day of the Court hearing

DISCUSSION & CONCLUSION

 

 

  1. Appropriately, the local authority has recognised that its actions place it at risk for the costs of at least part of the three days of the November hearing. The Respondents’ costs are all met by the Legal Aid Agency, and I have taken into account their respective similar positions in defending the funds of that agency and requesting that a costs order is made against the local authority for the three days.

 

 

  1. It was suggested on behalf of the local authority that these issues should have been drawn to the local authority’s attention by others at the Issue Resolution Hearing in late September. I reject that submission. None of these flaws should have been permitted to have tainted the documents and decisions of the local authority in the first place, none of the issues are novel but are well-known aspects of statute, case law and guidance. These were the standard responsibilities of the local authority, and not of the other parties nor the court.

 

 

  1. 137.                       Counsel also, ingeniously but unsuccessfully, attempted to suggest that the court should consider that the actions of the local authority were not ‘unreasonable’ or ‘reprehensible’ as they were the result of oversights rather than bad faith.

 

 

  1. The ordinary dictionary meaning of ‘reprehensible’ is ‘deserving censure or condemnation’ and derives from the latin verb meaning ‘rebuke’. I consider that each and every error identified in the local authority’s process deserves censure and could and should have been avoided. It was unreasonable to issue a placement application based on such material and, given the nature of the underlying errors, where the law relating to the standards to expect of evidence and analysis in adoption cases should be so well-known.

 

 

  1. The starting point here is that without the numerous and egregious errors of the local authority a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing.

 

 

  1. I do not consider that it was inappropriate to propose a plan for adoption and to seek a placement order, but the method by which it was pursued and applied for was riddled with avoidable error and failure to comply with important rules and requirements.

 

 

  1. Counsel for the local authority also urged upon me the positive steps taken by the local authority since November, and that the local authority could be said to have needed to have taken some significant time to consider the issues arising at the November final hearing and so should only bear the costs of a single day. The first point is a good one, and the second fails given that the errors should never have seen the light of day or gone ahead uncorrected in the first place.

 

 

  1. I welcome and bear in mind those positive steps outlined by the Director of Children’s Services, and consider that they go some way towards mitigating the local authority’s position. I have directed that the local authority should write to inform the court of the completion of each step identified by the Director and that I have mentioned in paragraphs 124-127 above.

 

 

  1.      I note that the pressures on the budgets of hard-pressed local authorities is very great, and that any costs order deprives this local authority of funds which can be used to assist children and families in need.

 

 

  1. In the circumstances, and bearing in mind the overriding objective, although it can quite properly be said that this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days, I am satisfied that it is sufficient censure to point this out in the context of the criticisms of this detailed judgment, to take into account the positive steps that are anticipated will prevent such avoidable errors in future, and to require the local authority to meet the Respondents’ costs of one day of the November hearing. Costs will be assessed.

 

 

 

 

  1. Finally, it will be noted that I have not named any single professional employed at this local authority. The local authority, quite properly and as required by case law, is identified. However, the problems appear to be systemic and wide-ranging. The identified problems touch each element of this local authority that has become involved in this case: social work, supervision, management, decision-making, legal advice, internal training, standards and checking systems, and ranging from social worker to lawyer to Director. Accordingly, it would be misleading and would attach too narrow a focus to name any single individual.

 

 

What this judgment is NOT, is a balance of whether long-term fostering is better than adoption for children generally. Instead, it is a careful reminder that in order to make a decision that involves permanent separation of a child from the parents and their family, the evidence has to be tested, it has to be accurate, it has to be checked, it has to be fair, and that processes, guidance and caselaw that are laid down to achieve that are ignored or bypassed not only at our peril but at the expense of justice and the children that we are working to help.

Bad feng shui and bad judgment

 

I was watching Silent Witness last night (don’t @ me), and snorted at how dreadful the depiction of the District Judge was who ignored the obvious signs of domestic violence and tackled the case with all the sensitivity and panache of Jack out of On the Buses, just in pinstripes.  How ludicrously exaggerated, I thought, we are so far beyond that in our modern understanding.

 

And then I read the JH v MF appeal.

[Maybe it was an exceptionally bad day rather than a true representation of the Judge’s usual approach, but this is one of the most withering appeal judgments I have ever read]

http://www.bailii.org/ew/cases/EWHC/Fam/2020/86.html

This was a private law case involving allegations of domestic abuse and violence and the impact that they would have, if proved, on the father’s contact with his child. The mother was represented by counsel, the father was not. The Judge at first instance His Honour Judge Tolson QC, conducted cross-examination of the mother on the father’s behalf so that the father would not be asking her questions directly.   This is an issue which legal commentators, and the judiciary have been troubled by for some time, and the judicial approach here with the Judge asking the questions is in line with the guidance provided by the senior Courts.

 

The mother had asked for screens to be made available so that she could give her evidence without having to look at the father. That’s not at all unusual, and it is usually a request that is granted, albeit that there’s normally a lot of faff in actually producing the screens.  Here though, the Judge decided that the mother should give her evidence from the counsel’s bench, rather than the witness box.  The Judge then, without any request by the father, decided that father too should give evidence from counsel’s bench. That meant, in reality, that the father’s evidence was given with his McKenzie Friend sitting by his side.  [I note also that the Judge accepted in his judgment that he could not hear all of the evidence given by the mother]

 

The judge then proceeded to order that the Respondent, too, should give evidence from counsel’s row making reference to the feng shui” of the court room and the screens and saying that it was fair and “created some kind of balance” without any application having been made by the Respondent that he needed to give evidence in the same manner as the Appellant. Concerns raised by counsel were dismissed without reasons being given for this decision by the judge. The Respondent was then able to give evidence sitting next to his McKenzie friend who was, as a consequence, able to assist the Respondent in the answers he gave when the Respondent was being cross-examined. It follows that the Respondent was given an advantage and assistance denied to the Appellant. As was submitted by trial counsel in her skeleton argument and I accept “… it is plain and requires no citation that when a witness is giving evidence, they are ‘under oath’ and are to receive no prompting, assistance or advice during the midst of it.”

 

 

Ms Justice Russell DBE, hearing the mother’s appeal, ruled that this failing alone was sufficient to grant the appeal, but

…along with his conduct of this case any broad analysis of his judgment, and approach to the fact-finding is so flawed as to lead to the conclusion that it is unsafe and wrong. Counsel submits that the judge failed to apply the provisions on PD12J of the FPR 2010 and drew this Court’s attentions to the following definitions;

 

 

“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

  • coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim
  • “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour:”
  1. It forms part of the Appellant’s case that the judge failed to apply these definitions, or at the very least, keep them in mind. That submission is accepted.

 

According to trial counsel’s notes the trial concluded at 16:30, and she, as for the Appellant, was unable to make the all the closing submissions she intended to in the time that was allowed to her which commencing at 16:45, not least as her oral submissions were repeatedly interrupted by the judge. The judge did not then call on the Respondent at all. The real risk of the appearance of a partisan approach in the judge’s conduct is self-evident. This was compounded when, after delivering his judgment at 17:55, the judge ordered a s7 report and invited the Cafcass Officer to consider Cafcass contact intervention, yet no evidence in respect of the need for this was given or considered during the trial, and the Appellant was denied any opportunity to address the court about the necessity for, or the imposition of such conditions. The judge then failed to give any reasons for so doing and further compounded his errors when, on 23rd August 2019, the judge directed Cafcass to investigate any child protection concerns in the Appellant’s care of C. Nothing in respect of this was raised at trial, there was no evidence (indeed the opposite was indicated in the safeguarding correspondence) before the court to support such a direction but the trial judge saw fit to impose such a direction, nonetheless

 

The judgment is heavily criticised.  There’s a startling passage in relation to text messages sent by the father to the mother (some at least during the course of the hearing) –  where the Judge describes as ‘sexting’ by the father a message which, well, is clearly not ‘sexting’.  [Apologies for the language, but I think it is necessary to see the bald words in order to form your own views]

 

  1. Secondly, after failing to deal with the text messages, sent by to the Appellant by the Respondent, during the hearing and on being addressed by counsel in respect of this failure on application for permission to appeal, the judge had concluded that graphic, sexually explicit and threatening texts such as “If you don’t shut up I will stick my cock up your ass” were consistent with “sexting” and were not “helpful”. It had not been the Respondent’s case that the texts were “sexting”, nor was this put to the Appellant during her evidence. Not only was the content of the texts likely to have been relevant in connection with any consideration of controlling and coercive behaviour, it may well have had relevance in connection with the complaints of sexual assault. Notwithstanding the relevance of the texts as evidence, it would seem that the judge wholly failed to understand that is the effect on the recipient that is pertinent when considering whether any message or communication is threatening and/or abusive.

 

The most troubling portions of the judgment relate to the trial Judge’s approach to the allegations by mother that the father had engaged in sexual intercourse with her against her will.  The way that Ms Justice Russell analysed those portions (as set out below) is that a very experience Family Court Judge had wholly miscategorised the issue of consent and had instead approached matters as though the mother was required to establish rape by showing that she had attempted to fight the father off and because she had not done so, there was consent.

 

[There are some High Court decisions over the last few years about experts being given a right of address before career-threatening or damaging findings are made. These comments seem to fall within that ballpark to me. ]

 

  1. The phrase “out-dated” is a euphemistic one on full consideration of the judge’s approach to the Appellant’s consenting to sexual intercourse in a physical position and manner which she, even on the judge’s assessment, found repugnant and was “sexual intercourse which was not, at the time, towards the [Appellant’s] taste or inclination.” …Paragraph 22)
  2. The relevant passages in his judgment which make most concerning reading are to be found in paragraphs 23, 24, 25, 26, 27 and 28. I have not set them out in full detail nor should it be necessary to do so as it is clear that the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct.
  3. The judge, having started by accepting that the Appellant “had difficulties in taking physical enjoyment from sex…” because of events in her past and had often told the Respondent to stop during intercourse in the past then went on to accept that on the first of the two incidents of penetrative sexual assault the Appellant had been reluctant to have sex, that during intercourse she asked him to stop and he did not and carried on; this appears to have been accepted by the Respondent to some extent as he said both that he stopped and later that the Appellant had not asked him to stop. Paragraph 23 reads “…the first occasion it is the mother’s own case that sexual intercourse began with her consent, and consent was only removed during intercourse when the mother told the father to stop — but he failed to do so. The difficulties do not end there because this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex. She would, she tells me, often tell the father to stop during the times when intercourse between them was more frequent than it was in 2016. The difficulties arose, apparently, because of events in her past…” The judge then went on to comment both that the Appellant had not physically resisted and that she was upset afterwards but dismissed her distress in this way; “If the [Appellant] was upset afterwards, which the [Respondent] recognises, this was nothing unusual because of the difficulties I have mentioned.”
  4. At paragraph 24 of his judgment the judge dealt with the Appellant telling the Respondent to stop penetrating her in this way “…the sex in question took place with the mother kneeling on the bed and the father standing behind her. During intercourse she told him to stop, but he did not, and carried on at least for “a couple of minutes”, which is a description given, I think, to the police. It is part of the mother’s case that she took no physical step to encourage the father to desist. The father’s contention is that the sex between them on this occasion, which he recognises because it was one of very few occasions when the parties had sex during the year in question, was entirely consensual from beginning to end, and he was not told to stop. If the mother was upset afterwards, which the father recognises, this was nothing unusual because of the difficulties which I have mentioned.”
  5. Further in dealing with her consent the judge continued (at paragraph 25); “My concern about this occasion centres on the idea that the mother did nothing physically to stop the father. In particular, given the position in which intercourse was occurring, because the mother was not in any sense pinned down on this occasion, but could easily, physically, have made life harder for the father. She did not do so. I do not find that the father was in any way on this occasion so physically forcing her as to cause her not to be able to take preventative measures, nor, in fact, is that case alleged. Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else. Her description, of course, does not indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.”
  6. This judgment is flawed. This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent. This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim. Whilst the burden of proving her case was with the Appellant in any counter allegation the burden lay with the Respondent. Indeed it was the Respondent who had brought the case as the applicant in the Family Court, thus the burden of proof did not lie solely with the Appellant. Moreover the judge should have been fully aware that the issue of consent is one which has developed jurisprudentially, particularly within the criminal jurisdiction, over the past 15 years (of which more below).
  7. The judge’s view in respect of consent is underscored by his comment at paragraph 25 (as quoted above) when he said, “My concern about this occasion centres on the idea that the [Appellant] did nothing physically to stop the [Respondent].” The judge then went on to say that because the Appellant was on all fours on the bed, at the Respondent’s insistence this would have, according to this judge, made it easier for her to resist and “made life harder for the [Respondent]…” and that the Respondent had not, the judge found (again the evidence on which he reached this conclusion is absent from the judgment), been “so physically forcing her as to cause her not to be able to take preventative measures [sic]..”. The judge then comments that the Appellant did not take immediate action to call the police or anyone else and that her description, in the view of this judge, did not “indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.” In keeping with his approach thus far the judge had apparently concluded that it is necessary for victims of sexual assault to report the assault or make a contemporaneous report. Yet it is now explicitly accepted that many victims will not do so, out of fear or embarrassment which are based on their cultural, social or religious background and the concomitant pressures, mores or beliefs.
  8. The judge then considered the second incident when the Appellant says sexual intercourse took place without her consent at paragraph 26 of his judgment. “The second occasion, occurring some two months later, began with the parties watching television whilst in bed. The father suggested the television should be turned off. As I understand it, it is common ground that it was, and then the father, again, requested sex of the mother. This time the mother’s case is that she refused, and when intercourse began it was not with her consent. She says that she was wearing pyjamas. The father took the pyjamas off and had intercourse with her, again from behind. This was at no point, the mother says, with her consent. The father maintains to the contrary — that intercourse was initiated by both of the parties and was entirely consensual throughout. Again, he recalls the occasion of which the mother speaks. Here, my difficulty with the mother’s account centres on the removal of her pyjama bottoms. I should emphasise that father’s account is that in fact she was wearing a nightie. I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of the pyjama bottoms. There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive on this occasion. Insistent in his requests, yes, but physically coercive, no.”
  9. The Respondent was once again penetrated by the Respondent from behind. The Respondent said she consented. The Appellant said she did not at any point consent to sexual intercourse taking place. At paragraph 26 (quoted above) the judge said, “…my difficulty with the [Appellant’s] account centres on the removal of her pyjama bottoms…I do not see why the [Appellant] could not, should not, have made life difficult for the [Respondent] in the circumstances by preventing the removal of the pyjama bottoms.” Again the judge’s conclusion on whether sex was consensual or not is wrongly predicated on the presumption that to establish non-consensual penetration the complainant should have physically resisted. Similarly, the judge said “There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive (my emphasis) on this occasion” as can be seen below physical coercion or violence or the threat of violence is not considered a necessary element when considering consent or the lack of consent, thus the judge was wrong in his approach.
  10. This time (as the judge noted in paragraph 27 of his judgment) the Appellant did report a serious sexual assault to the Police. Paragraph 27 reads “The [Appellant] “was to report these events to the police at the end of August. But there may be some significance in the circumstances in which she did so because one of her friends, [P], in her written statement, appears to imply that the purpose of the visit to the police station at the end of August was to report father’s threats made to her [P}, and that it was almost incidental that the question of the mother being forced to have sex (the expression used in [P’s] police statement) came to be revealed. Moreover, the terms of [P’s] statement, again, can hardly be said to be heavily supportive of mother’s case as to the terms in which the mother was reporting what happened to her. [P’s] account contains the following sentence: ‘I asked her what had then happened and she told me that she had let the father have sex with her as it was easier than to keep saying no.’ That can hardly be said to support a coherent account of rape.”
  11. Thus the circumstances in which the complaint was made was impliedly, and to some extent explicitly, criticised by the judge because the Appellant had originally accompanied a friend to the police station to complain about the Respondent’s aggressive behaviour to that friend, and it was the friend who had raised the incident of sexual assault on the Appellant with the Police. The friend told the Police, as the judge quoted in his judgment (above), ‘“I asked her what had happened and she said that she had let the [Respondent] have sex with her as it was easier than saying no.”‘ This, the judge found, could hardly be said to support a coherent account of rape. This conclusion is obtuse, any decision of consent must include a coherent account (to borrow the judge’s own phrase) and consideration of the extent to which the complainant or victim was free to choose and to consent, or to paraphrase the relevant criminal statute (s74 Sexual Offences Act (SOA) 2003), that person has had the freedom and capacity to make that choice. It is arguable, at the very least, that the evidence before the judge was that the Appellant’s freedom and capacity to choose had been extinguished or at least gravely compromised.
  12. At paragraph 28 of his judgment, which reads “My findings on this occasion, as to both these occasions, is that the sex between the parties carried the consent of both. This was not rape. It may have been that at a point during both occasions of intercourse the mother became both upset and averse to the idea of the intercourse continuing. But if she did so, I emphasise this was something which was usual for her, the product of events in her past and her psychological state in not being able to take physical pleasure from sex. It was not a consequence of any action on the part of the father. Moreover, at no point during these occasions do I find that the mother withdrew consent or conveyed to the father any discomfiture that she was feeling about the intercourse continuing. I cannot even, on this evidence, find that the father was somehow insensitive to the mother’s position. I can accept that he would have asked for sex perhaps on a number of occasions before sex commenced, but that is as far as it goes. Given the nature of these allegations I have felt it necessary to set out these detailed findings in respect of it.”
  13. Thus, the judge had accepted that “at a point during both occasions of intercourse the [Appellant] became both upset and averse to the idea of intercourse continuing. [My emphasis]” but he continued to reach the conclusion that had the Appellant done so it was not as a consequence of any action on the part of the Respondent because it was “something that was usual for her, the product of her past and her psychological state in not being able to take physical pleasure from sex.” The judge went to say that “at no point do I find that the [Appellant] withdrew consent or conveyed to the [Respondent] any discomfiture that she was felling about intercourse continuing.” The judge failed to explain the reasons for his findings; as to why, if it was evident to the judge that the Appellant had become averse to sexual intercourse continuing it was not evident to the Respondent; and, secondly, why it was acceptable for the Respondent to insist on sexual intercourse knowing that it was distressing and unwelcome to the Appellant. The evidence that the judge had rehearsed thus far did would not support such a finding nor did he give any or adequate reasons for preferring the evidence of the Respondent, other than the bald comment in paragraph 13 that he had found him to be “the more convincing witness, giving his evidence in a straight-forward, forthright manner…” The fact is that this judge had largely relied on his view that the Appellant had not vigorously physically fought off the Respondent.
  14. Moreover, the judge did not consider or explain in his judgment why, as it was an accepted fact that the Appellant was unable to take physical pleasure from sex, there was no onus on the Respondent to establish that the Appellant was able to and was freely exercising her right to choose whether or not to participate in sexual intercourse. The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.

 

 

The Appeal Judge went on to give guidance to the Family Courts in general

 

  1. While a trial in the Family Court cannot, and must not, set out to replicate a trial or to apply, or seek to apply, Criminal Law or statute it cannot be lawful or jurisprudentially apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or in other form were non-consensual. Non-consensual sexual intercourse was considered lawful within a marriage until as late as 1992 (Cf. R [1992] 1 AC 599) it has not been lawful in any other sphere for generations. There is no principle that lack of consent must be demonstrated by physical resistance, this approach is wrong, family judges should not approach the issue of consent in respect of serious sexual assault in a manner so wholly at odds with that taken in the criminal jurisdiction (specifically the changes in place since SOA 2003 and subsequent amendments). Serious sexual assault, including penetrative assault, should be minimised as an example of coercive and controlling behaviour (itself a criminal offence) although such behaviour may form part of the subordination of a potential victim’s will (see the guidance set out at paragraphs 19 and 20 above).
  2. To consider the relevant approach to be taken reference should be made to the statutory provisions in respect of consent; s 74 of the Sexual Offences Act (SOA) 2003 provides that “‘Consent’ (for the purposes of this Part – my parenthesis) a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” There are circumstances in criminal law where there can be evidential or conclusive presumptions that the complainant did not consent set out in ss75 & 76 which, respectively, concern the use or threat of violence by the perpetrator and the use of deception; neither of which preclude reliance on s74 (Cf. Blackstone’s B3.46 2020 ed.)
  3. To quote from Blackstone’s Criminal Practice [2020 at B3.28] where the absence of consent is considered it is said “the definition in s74 with its emphasis on free agreement, is designed to focus upon the complainant’s autonomy. It highlights the fact that a complainant who simply freezes with no protest or resistance may nevertheless not be consenting. Violence or the threat of violence is not a necessary ingredient. To have the freedom to make a choice a person must be free from physical pressure, but it remains a matter of fact for a jury as to what degree of coercion has to be exercised upon a person’s mind before he or she is not agreeing by choice with the freedom to make that choice. Context is all-important.” There can be no reason why this approach should not be followed in the Family Court, whilst applying a different standard of proof. The deleterious and long-term effects on children of living within a home domestic abuse and violence, including serious sexual assault, has been accepted for some years, as is the effects on children’s welfare, and their ability to form safe and healthy relationships as adults, if their parents or carers are themselves subjected to assault and harm.
  4. In respect of consent in the criminal jurisdiction, which should inform the approach in the Family Court, the authors of Blackstone’s set out at B3.29 “Consent covers a range of behaviour from whole-hearted enthusiastic agreement to reluctant acquiescence. Context is critical. Where the prosecution allegation of absence of consent is based on lack of agreement without evidence of violence or threats of violence, there will be circumstances, particularly where there has been a consensual sexual relationship between the parties, where a jury will require assistance with distinguishing lack of consent from reluctant but free exercise of choice.” The Court of Appeal Criminal Division considered that a direction along the lines of the direction of Pill J approved in Zafar (Cf. the Crown Court Compendium (July 2019), chapter 20.4, para. 4) may well be appropriate. It should be advisable for Family Court judges to remind themselves of this approach and direct themselves appropriately based on the relevant approach contained in Chapter 20.
  5. With further reference to B3.29 (Ibid) and the approach to take in making the distinction lack of consent from reluctant but free exercise of choice; “submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence” (Cf. Watson [2015] EWCA Crim 559); or where a complainant’s free choice was overborne so that they did not have a free choice; an example of which was when a complainant gave into a perpetrator’s demands because she was scared that if she did not he would have sex with her by force.
  6. As a further example of the approach to be taken in respect of consent in civil proceedings in Archbold Criminal Pleading and Evidence 2020, Chapter 20, Part II, at A [20-23] reference is made to the case of Assange v Swedish Prosecution Authority [2011] EWHC 2849 as “relied on in R. (F.) v DPP [2013] EWHC 945 (Admin); [2013] 2 Cr App R 21, DC, for the proposition that ‘choice’ is crucial to the issue of ‘consent’; and the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common sense way; where, therefore, a woman consents to penetration on the clear understanding that the man will not ejaculate within her vagina, if, before penetration begins, the man has made up his mind that he will ejaculate before withdrawal, or even, because ‘penetration is a continuing act from entry to withdrawal’ (s.79(2) (§ 20-42)), decides, after penetration has commenced, that he will not withdraw before ejaculation, just because he deems the woman subservient to his control, she will have been deprived of choice relating to the crucial feature on which her original consent was based, and her consent will accordingly be negated.”
  7. A further and instructive distinction between consent and submission and the approach to be followed was drawn in R v Kirk (Peter & Terence) [2008] EWCA Crim 434: [2008] 3 WLUK 36, by Pill J at [92] where the expression “willing submission” had been used in directing the jury, it was said that the use of the expression was “not an easy one in this context. Willingness is usually associated with consent. However, we are satisfied that the jury would not, in the context of this very full direction, have been misled by the use of the word “willing”. This was not a case where it was alleged that submission had been achieved by physical force. It was willing in the sense that there was no attempt at physical resistance by the complainant and the judge used it in that sense. That leaves open the possibility that the circumstances were such that the complainant submitted to sexual intercourse rather than consented to it. That was the overall effect of the direction. We are satisfied that, having regard to the full direction given, the jury would not have been misled or distracted, by the use of the expression “willing submission”, from the question they were told they had to answer. It is not, however, an expression we would commend for use on other occasions.”
  8. The judge in the instant case should have considered the likelihood that the Appellant had submitted to sexual intercourse; he singularly and comprehensively failed to do so instead employing obsolescent concepts concerning the issue of consent.

 

For the reasons set out above the judgment was so flawed as to require a retrial; his decision was unjust because of serious procedural irregularity and multiple errors of law. The case is to be remitted for retrial by a High Court Judge or Deputy High Court Judge at the Royal Courts of Justice.

 

Recommendation

  1. Judges in the family courts are regularly required to make decisions and find facts in cases where there is domestic abuse; this will include cases where serious sexual assault is alleged to have taken place. Currently there is comprehensive training on the procedural aspects of such trials and the implementation of PD12J in particular. Judges who sit in the family courts are not, however, required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised. Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction. I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges. This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach

 

If you can’t remember the principles of an ABE interview, perhaps you shouldn’t be doing them?

 

Yet another High Court case about a flawed  set of Achieving Best Evidence interviews. It is more than a little dispiriting that 30 years on from the principles of ABE having been carefully crafted to do exactly what it says on the tin, Achieve the Best Evidence, I can’t recall a reported case where the Judge praises the quality of the ABE interview, but dozens where they have been awful.

 

In this case

http://www.bailii.org/ew/cases/EWFC/HCJ/2019/75.html

EF, GH, IJ (care proceedings) [2019] EWFC 75 (06 December 2019)     

 

Three boys had made allegations of sexual abuse and physical abuse against their father and their paternal grandparents. Some of those allegations involved the abuse happening within secret rooms at the grandparents home.

That’s not the trickiest thing in the world to investigate to see if it checks out. Is there or is there not a secret room at the grandparents home?  Rather than checking that out, the officer instead conducted 23 ABE interviews (six each with two of the boys, and eleven with the third)

In giving evidence, the officer told the Court that if she had not retired and handed the case over to another officer (whom the Court exonerated from any blame) she would have continued to interview the children if they still wanted to talk.

 

  1. Katrine Andrews retired as a police officer in September 2018 although her last working day was 14th July 2018. She was the officer in charge of this case from October 2017 to the date of her retirement. Accordingly, for ease of reference in this judgment I shall refer to her as DC Andrews.
  2. A recurring theme of her evidence was that:
  3. i) she had a very heavy caseload and usually carried 17 to 21 live investigations in addition to this case;

ii) all of the other officers in the protection unit were, at that time, similarly overburdened with heavy caseloads;

iii) she did not approach any of her senior officers to seek additional help and/or support; and

iv) she considered she had undertaken her investigation into this case to the best of her skill in light of the heavy burden of work she had had to manage.

  1. In her evidence DC Andrews could not recall the Achieving Best Evidence principles. She could not recall the 4 phases of planning and preparation for conducting an ABE interview with a child, namely rapport, free narrative account, open ended questions and closure.

  2. She thought the interview conducted by PC Morris with EF on 21st September 2017 had been video recorded, even though she must have known there was no such facilities at the police station where she was based.
  3. She confirmed she had asked all three of the boys to complete a timeline outside the confines of an ABE interview. She considered it would take too long to undertake this exercise during an ABE interview. She seemingly had given not a moment’s thought or consideration of the risk of the boys’ accounts being contaminated if they prepared a timeline outside of a formal ABE interview. She told me there were ‘no problems’ with asking a child to prepare a timeline (outside of the confines of an ABE interview) before interviewing the child because it gives an interview structure.
  4. She told me that EF, GH and IJ appeared to be happy to talk, so she just let them talk. She said she was victim-led and she would not stop a child talking if the child wanted to talk.
  5. She was asked whether she considered 6 ABE interviews with EF, 11 with GH and 6 with IJ were manifestly excessive? I would not stop interviewing them, she said, until the children wanted to stop talking. I then asked her if she had not retired in June 2018 whether would she have undertaken further ABE interviews with them and, in terms, she said yes. She did not accept that her approach risked encouraging the boys to make allegations but, in a very troubling rider, she added ‘They knew what I was looking for’.

  6. DC Andrews did not seek the advice nor the approval of her senior officers to undertake this number of interviews with these three boys. Further, I could not discern from the investigation log:
  7. i) any evidence that a more senior officer had held supervision sessions with DC Andrews; or

ii) any senior officer had undertaken any review of the conduct of and the progress of the investigation.

  1. She was pressed time and again for why she had not taken any substantive step to investigate the case other than by conducting interviews with the children (e.g. a visit/search of the paternal grandparents’ home to discover if there were ‘secret rooms’ in the property). Every time she responded that she had planned to do so only when she had finished interviewing the boys.
  2. There is no reference to planning or preparation by the officer in the investigation log. She boldly told me that she never wrote down her planning or preparation whether in the log or elsewhere. Save for asking the boys to each write a timeline and for booking the video suite for their ABE interviews, I could not discern that this officer undertook any planning or preparation. DC Andrews told me she had asked the boys, when writing their timeline to recall the first and last incidents of abuse and then they were to choose the ‘worst’ ones in between. There is no reference to this conversation in the investigation log which the officer claimed resulted from having a heavy workload.
  3. She did accept she should have told the boys about writing the timeline rather than to have delegated the task to the mother.
  4. One matter the officer did find time to record in the investigation log was her observation that the boys appeared to find the experience of multiple and extremely lengthy ABE interviews ‘cathartic’.
  5. The officer asserted that the mother had told her in November 2017 that the boys were making allegations of physical and sexual abuse. This is curious because the evidence of the mother and of EF is that the first of the boys to make an allegation of sexual abuse was EF to SC on 27th December 2017. The conversation is not recorded on the investigation log because of work overload.
  6. When it was put to her that her investigation had serially breached the ABE Guidance, she denied it. When it was put to her that she had undertaken an incompetent and negligent investigation, she denied it and added ‘I got a lot of information out of them’.
  7. At the conclusion of DC Andrews’ evidence, I gave her fair warning that I would likely to be highly critical of her conduct of this investigation. I told her that if she wished to instruct solicitors or counsel to make submissions as to whether:
  8. i) I should not be critical of her conduct; and/or

ii) I should not name her in the judgment,

I would be prepared to receive and take account of the same. She chose not to do so.

 

Having waived that right to instruct solicitors, some negative findings unsurprisingly came the way of DC Andrews

 

  1. The role played by DC Andrews in the lives of this family is hugely significant. It was plain from her oral evidence and police investigation log that she had given no consideration to the ABE Guidance at any time during her involvement with EF, GH and IJ. Rather, she breached most aspects of the Guidance and of accepted good practice when interviewing children and young people.
  2. I refer to the following principal breaches:
  3. i) DC Andrews undertook no planning or preparation prior to any interview with the boys;

ii) the ABE interviews were excessively lengthy and instructed;

iii) there was little or no use of open questions;

iv) the boys were asked via their mother, and not by DC Andrews herself, to compile a timeline. She told them to think of the earliest allegation and then of the last and then to choose the ‘worst’ ones in between;

v) she had decided not construct a timeline with each of the boys during an ABE interview because it would have been too time-consuming;

vi) because she was victim-led and had to believe the boys’ allegations, she saw nothing wrong or inappropriate in undertaking 6 interviews with EF, then aged 15, 11 with GH, then aged 12, and 6 with IJ, then aged 10;

vii) there is no evidence of her undertaking the interviews of the boys or of the father with an open mind;

viii) she inappropriately praised the children during the course of the interviews;

ix) the ABE interviews of the boys proceeded on the basis of going through the boys’ timelines – in effect a tick box exercise;

x) there was no consideration of the context in which these allegations came to be made nor for the escalation in the same both in the seriousness of the allegations and expansion in the number of people against whom allegations were made;

xi) save for the most rudimentary enquiries, no enquiries were made by DC Andrews to indicate or prove whether the boys’ allegations were true or false, in whole or in part;

xii) DC Andrews gave no consideration to the impact of the therapeutic counselling two of the boys were receiving; and

xiii) she failed to seek the advice of superior officers and/or their permission to undertake what I consider to be a manifestly excessive number of unjustifiably lengthy ABE interviews.

  1. An element of common sense and good practice was only brought to this case when DC Hopkins took over as the officer in charge of the case in July 2018. He put a stop to any further interviews with the boys. For this decision he came under wholly inappropriate pressure from the mother and UV to undertake further interviews with the boys. It is to his credit that he resisted.
  2. Perhaps the most concerning aspect of DC Andrews’ role and the most egregious aspect of her conduct of this investigation was her comment in her oral evidence that the boys ‘knew what I was looking for’.
  3. It was submitted on behalf of the father that the police investigation was conducted negligently. I do not agree. It was conducted in an utterly incompetent manner which I find was harmful to the three children. DC Andrews’ conduct of the ABE interviews played a very significant role in the boys’ allegations increasing in number and severity and to include other paternal family members. One of the reasons EF gave for making false allegations was the role played by DC Andrews.
  4. I was advised by the legal department of the West Midlands Police that in 2017 and now, it was not the policy of the force nor the training given to the officers that children must be believed when they make allegations: the advice is to keep an open mind.
  5. The West Midlands Police do not, however, escape criticism. There is no evidence of DC Andrews receiving any or any effective supervision during the 11 months in which she was the officer in charge of the case. How she was permitted to conduct this investigation in such an incompetent and harmful manner for such a protracted time is beyond me and, in my view, inexcusable.

 

I would not for a second suggest that conducting an ABE is an easy task. I certainly couldn’t do it. It requires a huge amount of skill and expertise and training. It requires both planning and the ability to think on one’s feet and adjust your strategy to what is emerging or not emerging. You need to be mindful that the circumstances in genuine child abuse can often make for bewildering and confused accounts AND that there are circumstances that lead to children giving untruthful accounts, and be able to keep both possibilities in mind.  It is hard.  But we can and must do better.  Children deserve better. Their parents deserve better. Too often we see the attitude that the ABE principles are more honoured in the breach than the observance, and too little understanding of the fundamental reasons why they arose at all.  If someone is setting down to interview a child to see whether they have been abused, the Achieving Best Evidence framework is there to protect the child and to give the best possible chance of what emerges from that interview being the truth, whichever way it points.  We discard those principles or play around the edges of them at our peril.

Re B-S for Secure Accommodation BIG BIG BIG


 

 

It could easily be said that a big over-arching Court of Appeal analysis of Secure Accommodation has been long overdue, but it is here now. And just like B-S did (or did, then didn’t, but did but didn’t, depending on which subsequent Govt press release/Court of Appeal authority you read and when), this changes everything.

I’m sorry, this is LONG. The new test on secure is in large font or  para 98 of the decision http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

If you represent LA’s who apply for secure orders, or represent parents whose children may be placed in secure, or guardians / children who are the subjects of such applications you NEED to READ this. The landscape changes completely.  There are brand new areas of proper challenge to the making of such orders, and they will be much more wide-ranging hearings than previously.

It is long, but read it.

To recap a bit for those who aren’t as invested as I am in the intricacies of Secure Accommodation, we’ve had three problems in this field and the law on this field.

 

  1. Is the making of a Secure Accommodation Order mandatory if the section 25 test is made out? The statute says so, but there are two different branches of authorities, one saying yes and one saying the other philosophy of the Act that the order must be better for the child than making no order still applies.
  2. To what extent is proportionality and necessity an issue? (Again, two different branches of authorities)
  3. Due to a massive shortage of spaces and beds, what are the circumstances in which it is okay to use inherent jurisdiction (magical sparkle powers TM) to make a non-approved secure unit look after a child and use the same sorts of powers as s25 offers?

And we can add now a fourth problem/ question that we didn’t know we had

 

4. Is secure binary? (i.e if the Court makes a secure accommodation order under s25, is it then up to the Unit to decide how to manage the child, or does the Court have a role in deciding what particular restrictions of liberty are authorised and which are not?)

 

The legal test for making a secure accommodation order is this:-

 

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

 

(ii)if he absconds, he is likely to suffer significant harm; or

 

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

And the statute goes on to say :-

 

(3)It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4)If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

 

So the Act says :- if the LA apply for a Secure Accommodation Order, the Courts job is to consider whether the factual basis for saying that the s25(1) criteria are made out and IF SO to MAKE the order (there isn’t a judicial discretion element there. That obviously troubles people post Human Rights Act, because welfare, proportionality and necessity have become the fundamental underpinning mechanisms of all Family Court decision-making since the HRA and the authorities that have arisen from it. Everyone thought in the late 90s that s25(4) was going to be declared incompatible with the HRA but it just didn’t happen. And instead we just saw some cases saying ‘it is manadatory if the s25(1) criteria is made out’ and some saying ‘I can take into account the child’s welfare and whether this is a proportionate way of managing the child’s welfare’

(An argument about proportionality is that the s25(1) criteria are in and of themselves a proportionality test – you can’t lock a child up unless that test (which gives the reasons why they would need to be locked up) is met. The counter argument to that is that whilst that means the Court have to lock up every young person who meets the test IF they are asked to make a s25 order, the LA have children who meet the test but they decide not to lock up and manage the risk in other ways – and why is that decision resting solely with a Local Authority and not with a Judge? Why can’t a Judge decide that Child A properly belongs in the group of children who are at serious risk but can be managed without locking them up?)

Given that the decision ultimately is whether a young person is going to live in a home with locked doors and controlled access to their movements, it is very important to know which route we are taking – the strict statute, or the HRA-informed proportionality.

 

I’ll come onto the facts of the case and the decision later (assuming I keep up my enthusiasm), but I’m going to deal with these four questions first.

B (Secure Accommodation Order), Re (Rev 1) [2019] EWCA Civ 2025 (21 November 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

 

 

 

The Court of Appeal frame four questions (wording them differently to my four)

2.The appeal raises four important and overlapping questions on the interpretation of s.25.

 

 

 

(1) What is the meaning of “secure accommodation” in s.25?

 

(2) What are the relevant criteria for making a secure accommodation order under s.25?

 

(3) What part does the evaluation of welfare play in the court’s decision?

 

(4) When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the ECHR, to carry out an evaluation of proportionality?

 

 

The Court of Appeal decisions follow:-

 

What is ‘secure accommodation’?

In my judgment, “secure accommodation” is accommodation designed for, or having as its primary purpose, the restriction of liberty. As Wall J acknowledged, however, premises which are not designed as secure accommodation may become secure accommodation because of the use to which they are put in the particular circumstances of the individual case.

 

 

60.Unlike Re D, the present appeal does require the court to interpret the section with reference to a “real factual situation”. As Lady Black recognised, however, training the spotlight on the accommodation does not provide a complete answer to the question. She acknowledged that, while some types of secure accommodation will be readily recognisable as such, others will not. In some cases, it will not be easy to say whether the accommodation is or is not “secure”.

 

(oh good)

 

Is the child’s welfare paramount? (short answer NO)

 

68.The decision in Re M clearly establishes that the paramountcy principle in s.1 of the Children Act does not apply to applications under s.25. It has been followed by all courts hearing applications under the section and is binding on this court. There is, however, less clarity as to the extent of the evaluation of welfare which the court is required to carry out. There is a small but perceptible difference between the view expressed by Butler Sloss LJ and that of Hoffmann LJ. Both agreed that the court must apply the same criteria as the local authority and that the relevant criteria include welfare. Butler-Sloss LJ considered that the distinction between a reviewing power and a general duty to consider welfare was “a matter of words” but that “the court has the specific duty to determine whether any relevant criteria are satisfied” and that, in performing that duty, welfare is “of great importance”. Hoffmann LJ, however, thought that function of the court under s 25 is “merely to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child”.

 

 

69.Some might consider this to be a distinction without a difference. It should be noted that the third judge in the constitution, Sir Tasker Watkins, agreed with both judgments. In my view, however, there is a difference of approach in the two judgments. It is therefore unsurprising that in subsequent cases, courts have sometimes struggled with the issue of how to deal with cases where they perceive that, whilst the conditions in s.25(1) are satisfied, the placement proposed by the local authority would be contrary to the child’s overall welfare.

 

[By the time you get to the bottom of this, you might well think that unless there’s a ‘protection of the public’ element to the case, the distinction between the child’s welfare ‘not being paramount’ and what is described below looking very much as though the child’s welfare is paramount is wafer-thin]

 

What role does welfare have in the decision?

72.In my judgment, the “displacement of the court’s welfare role” as required by the decision in Re M extends only to the displacement of the paramountcy principle. It does not require the court to abdicate responsibility for evaluating impact of the proposed placement on the child’s welfare. On the contrary, as Butler-Sloss LJ said, the child’s welfare is plainly of great importance in deciding whether or not an order should be made. The local authority and the court must each consider whether the proposed placement would safeguard and promote the child’s welfare. In some cases, the child’s welfare needs will be served by a period in secure accommodation, particularly if supported by a comprehensive therapeutic programme. In other cases, the child’s welfare will not be promoted by such a placement. However, just as s.22(6) allows the local authority to exercise its powers in a way that does not promote the child’s welfare if necessary to protect the public, there may be cases where the court concludes that the child’s welfare needs are outweighed by the need to protect the public from serious harm. Welfare is therefore not paramount but is plainly an important element in the court’s analysis. It is one of the relevant criteria.

 

 

73.This interpretation of s.25 is fortified by the Human Rights Act 1998, which came into force five years after Re M was decided in 1995

 

Proportionality – is it relevant ? (short answer, yes, the Court need to conduct an exercise before deciding whether or not to make a secure accommodation order)

 

 

 

 

88.In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

 

 

89.The ECHR, in particular Article 8, is part of the bedrock of the Children Act. As Baroness Hale observed in Re B [2013] UKSC 33, at paragraph 194:

 

 

 

“The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under Article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.”

 

In exercising their duties and powers under s.25, local authorities and courts must comply with the ECHR and, in particular, Articles 5 and 8. Since the principle of proportionality is integral to Convention rights, it is incumbent on local authorities and courts not to apply for, or grant, orders under s.25 where, to adopt the phrase used by Lord Reed in the Bank Mellat case, the impact of the rights infringement is disproportionate to the likely benefit.

 

The 2014 statutory guidance refutes the well-established principle that secure accommodation is a last resort

 

 

“40. Restricting liberty of a child is a serious step that can only be taken if it is the most appropriate way of meeting the child’s assessed needs. A decision to place a child in secure accommodation should never be made because no other placement is available, because of inadequacies of staffing in a child’s current placement, or because the child is simply being a nuisance. Secure accommodation should never be used as a form of punishment.

 

  1. This does not mean, though, that restriction of liberty should only be considered as a ‘last resort’. Restricting the liberty of a child could offer a positive option. A decision to apply for an order under s25 of the Act should be made on the basis that this represents the best option to meet the particular needs of the child. The placement of a child in a secure children’s home should, wherever practicable, arise as part of the local authority’s overall plan for the child’s welfare.

 

The Court of Appeal say that the statutory guidance is WRONG

 

91.In these circumstances, it seems to me that the passage in the latest edition Guidance (quoted at paragraph 23 above), which refutes the proposition that restriction of liberty should only be considered as a last resort, is inconsistent with principle. To deprive a child of liberty in circumstances which were not a last resort would surely be disproportionate.

 

We have for a long time (prior to the 2014 guidance) had a weird divergence where LA’s were told that they could not ASK for secure accommodation unless it was a last resort, but the Courts were told they had to make the order if the criteria were met and were not required to find that it was a last resort. The Courts now DO have to make such a finding (implicit in para 91 above that in finding that secure is a proportionate order to make, such decision would be flawed in circumstances where secure was not the last resort)

 

 

 

Evaluation of welfare – Court must carry out an evaluation of how secure meets the child’s welfare needs before making an order – the evaluation CAN include the need to protect the public

 

The assessment of proportionality which the court is obliged to carry out as a public authority will inevitably involve an evaluation of welfare. In my judgment, this analysis applies equally to applications under s.25. Accordingly, the interpretation of s.25 proposed by Hoffman LJ in Re M – that the function of the court is to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child – and the approach suggested by Charles J in S v Knowlsey – that the court should assess welfare issues under s.25 on the basis that the local authority is the decision maker – are, in my view, incompatible with the court’s duty under s.6 of the Human Rights Act. On an application under s.25, the court must carry out its own evaluation of whether the order would safeguard and promote the child’s welfare. The intensity of that evaluation will depend on the facts of each case. In most cases, it is unlikely to involve a wide-ranging inquiry. The question for the court is whether, in all the circumstances, including the need to protect the public, the proposed order would safeguard and promote the child’s welfare

 

 !!!!!!HERE COMES THE NEW S25 TEST !!!!!!

Relevant criteria revisited

98.Having analysed the roles played by welfare and proportionality in the decision-making process under s.25, I conclude that, in determining whether the “relevant criteria” under s.25(3) and (4) are satisfied, a court must ask the following questions.

 

 

 

(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

 

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

 

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

!!!! TEST ENDS!!!!

(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)

99.If the relevant criteria are satisfied, s.25(4) obliges the court to make an order under the section authorising the child to be kept in secure accommodation and specifying the maximum period for which he or she may be so kept. In its submissions to this court, the ALC was rightly anxious to preserve the use of what it called “imaginative arrangements” – the arrangements characterised by Hayden J in Re SS as “the creative alternative packages of support” – and was concerned they would be squeezed out by too wide a definition of “secure accommodation”. The recasting of the interpretation of the relevant criteria under s.25 suggested in this judgment preserves the flexible approach advocated by the ALC. If the court determining an application under s.25 is obliged to conduct an evaluation of welfare and an assessment of proportionality, and in doing so applies the principle that a secure accommodation order should always be a last resort, the court will be under an obligation to consider alternative arrangements

 

 

What is the Relevant Date?

This doesn’t come up very often (or didn’t). The Court of Appeal say  (para 100) that the relevant date for establishing whether the s25 criteria (bundling up now proportionality and welfare evaluation including alternative arrangements) is met is the date of the application.

That inevitably means that where the child is in Secure (and has been for a period of months rather than 72 hours) as a result of a previous order, the evaluation of whether the s25 criteria is met is on the date of the application – the history will come into play, but the current position is huge.

 

Inherent jurisdiction – yes, with a pretty huge but

 

101.S.25 does not cover all circumstances in which it may be necessary to deprive a child of their liberty. As Lady Black observed in Re D, at paragraph 100:

 

 

 

“The children who require help will present with all sorts of different problems, and there will be those whose care needs cannot be met unless their liberty is restricted in some way. But by no means all of these children will fall within the criteria set out in section 25(1)(a) and (b), which are the gateway to the authorisation of secure accommodation. It seems unlikely that the legislation was intended to operate in such a way as to prevent a local authority from providing such a child with the care that he or she needs, but an unduly wide interpretation of “secure accommodation” would potentially have this effect. It is possible to imagine a child who has no history, so far, of absconding, and who is not likely actually to injure himself or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with his own welfare, needs to be kept in confined circumstances.”

 

It is well established that a judge exercising the inherent jurisdiction of the court with respect to children has power to direct that the child be detained in circumstances that amounts to a deprivation of liberty. Where the local authority cannot apply under s.25 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted: s.100(4) Children Act. As I have already noted, the use of the inherent jurisdiction for such a purpose has recently been approved by this court in Re T (A Child) (ALC Intervening) [2018] EWCA Civ 2136. In Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam), Sir James Munby P, in a series of test cases, set out the principles to be applied. It is unnecessary for the purposes of this appeal to revisit those principles in this judgment. Last week, Sir Andrew McFarlane, President of the Family Division, published guidance, focusing in particular on the placement under the inherent jurisdiction of children in unregistered children’s homes in England and unregistered care home services in Wales.

102.Where, however, the local authority applies under s.25 and all the relevant criteria for keeping a child in “secure accommodation” under the section are satisfied, the court is required, by s.25(4), to make an order under that section authorising the child to be kept in such accommodation. To exercise the inherent jurisdiction in such circumstances would cut across the statutory scheme

 

(To make this clear – a Court cannot on an application under s25 where there is no bed, use inherent jurisdiction to place the child in a unit which is not approved as a Secure Unit and authorise restriction of liberty. They can do this if there isn’t a s25 application OR if they find the s25 criteria are not met but somehow it is still proportionate to restrict the child’s liberty – I can’t at the moment conceive of such a scenario but it is out there as a possibility)

 

 

Is secure binary? I don’t know, but… maybe not?

 

It is really a question of whether the proportionality and welfare evaluation is limited to ‘there being restrictions’ or looking at the individual restrictions. I honestly don’t know. This is the paragraph that comes closest to it

 

120….when a local authority takes a decision about a child under section 25 there must be some proper measure of proportionality as between the purpose or objective behind the proposed deprivation and both (a) the very fact of deprivation (ie the decision to place the child in secure conditions in the first place) and (b) if such a decision is properly taken (ie is proportionate) the nature and degree/extent of the deprivation (ie the extent of the actual restrictions imposed upon the child in secure conditions).

 

The Court of Appeal also remind us that article 8 of the HRA applies to making a Secure Accommodation Order

117…both Articles 5 and 8 are capable of applying to the deprivation of liberty of a person, including of course a child. Indeed, whenever a person is deprived of liberty (thereby engaging Article 5) that executive act will almost inevitably engage that person’s private life rights under Article 8. When an authority deprives someone of their liberty private life is by its nature curtailed. Lady Hale in Re D (A Child) [2019] UKSC 42 (Re D) at paragraph [3] made a similar point about the combined effect of Articles 5 and 8 as they applied to the rights of a child and those of parents.

 

 

I said that I’d quickly run through the facts of the appeal – basically a LA made a s25 application, there was no bed so the child was placed at a non-Secure unit (named “N”) and restrictions to the child’s liberty were authorised under inherent jurisdiction. The LA when a secure unit was found, applied for a s25 order to move the child from “N” to that unit. The Judge found that the test wasn’t met, because it was limb s25(1) (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.    And the Judge considered that the child could be kept in N, which wasn’t secure accommodation, and so didn’t meet the test. And then went on to decide that it wasn’t in the child’s interests to be moved.

 

The Court of Appeal say that the Judge was wrong in deciding that N wasn’t secure accommodation (for reasons explained many pages ago) and that thus the criteria were made out. The Judge would have been entitled to decide that moving the child from N to another unit was not in the child’s interests but the Judge had not carried out the proportionality and welfare evaluation (that the Court of Appeal only just decided was necessary, so that’s harsh) to make that decision.

“And all the pieces matter…”

 

 

 

This is a Court of Appeal case where a Judge having heard a 3 day hearing about an alleged fracture to a 3 year old’s arm ended up giving an oral judgment at 4.30 pm on the third day, that lasted until 6.45pm.

S (A Child: Adequacy of Reasoning), Re [2019] EWCA Civ 1845 (31 October 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/1845.html

 

(By the way, the Court of Appeal don’t title a case “Adequacy of Reasoning” and then conclude ‘yes, it was perfectly adequate’…)

 

The judgment did not explain the reasoning for the judicial findings and was sent back for re-hearing.

 

As the Court of Appeal say in the judgment

 

34.I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge’s clarification at [89]. I would also accept that a judgment must be read as a whole and a judge’s explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge’s conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.

 

Thus giving me the opportunity to make a Lester Freamon Wire reference in the title, yay.

 

The Court were sympathetic to the pressures on the Judge

 

 

 

 

2.As we told the parties at the end of the hearing, this appeal must be allowed. In reaching that decision, we do not overlook the reality. Judges are encouraged to give extempore judgments where possible and appeals will not succeed simply because matters might be better expressed with the luxury of extra hours of preparation or because judgments may contain imperfections. What matters is that the parties know the outcome and the reasons for it. Where the essential evidence has been considered and the decision has been adequately justified, that will do. In this case however, it did not happen. Despite the judge’s efforts, the parties were at the end of the judgment unsure what she had decided about the two main issues in the case. Clarification was sought. It to some extent makes the judge’s intentions clearer but too many actual or arguable inconsistencies remain and important conclusions are inadequately explained. There will regrettably have to be a rehearing.

 

The Court of Appeal give Judges in a similar position an out

 

The questions that the judge therefore had to ask were these[1]:

 

 

 

 

(1) Had the local authority proved that the injuries were inflicted as opposed to being accidental?

 

(2) If the injuries were inflicted, who had the opportunity to cause them?

 

(3) Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional ‘known perpetrator’ finding)?

 

(4) If only two people (the mother and Mr C) could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an ‘uncertain perpetrator’ finding).

 

(5) Once these questions had been answered, had it been proved that the mother had failed to protect S from being injured or covered up what she knew about how he was injured?

4.Unfortunately the judge did not approach matters in this way.[2] Once she had decided to give the parties her decision that day, it would have been better if, rather than delivering a 30 page judgment under time pressure, she had simply set out and answered the necessary questions and given her essential reasons in a few additional lines. This is in any event a useful discipline, particularly where a party is unrepresented. Everyone knows exactly what has been decided and why. The full decision could follow, either then or at a later date.

 

It seems from my reading that it was fairly clear to see that the Judge thought the fracture was deliberately caused, and that the mother’s partner had been less than frank in his evidence and account, but having said that the Judge thought it was likely that the child was injured in the care of mother’s partner, Mr C, the Judge doesn’t really explain how she went on to find that she could not identify a perpetrator and found that it was either mum or Mr C.  Which explains why the mother appealed.

 

32.In Re N-S (Children) [2017] EWCA Civ 1121, McFarlane LJ said this:

 

 

 

“30. The need for a judge to provide an adequate explanation of his or her analysis and the reasoning that supports the order that is to be made at the conclusion of a case relating to children is well established. Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and others judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead. In addition, of course, inadequate reasoning is a serious impediment to any consideration of the merits of the judge’s decision within the appellate process.”

 

An important point arises that the Court of Appeal asked for a transcript of the hearing but that

the court tape was such poor quality that none of the evidence or judgment (except the evidence of Dr Watt, given by video link) could be transcribed.[3] The advocates agreed a note of judgment which was amended by the judge and handed down electronically on 12 June 2019.

No case to answer in care proceedings

 

This is a post-script to a judgment involving 25 children, in I think 15 linked care proceedings which had 49 parties, 4 Local Authorities and 21 silks. For most of the finding of fact hearing there were 100 people present in Court.

I’ll be writing about the full case later in the week, but Hedley J at the conclusion of the Local Authority case after a month of evidence, was invited by 19 of the 21 respondents to dismiss the allegations against them. Effectively an application of ‘no case to answer’ in care proceedings.

 

The allegations in the case all arose from the allegations of 3 children, two of whom gave evidence, and one who did not.

 

Re AA and 25 others 2019

https://www.bailii.org/ew/cases/EWFC/HCJ/2019/64.html

 

  1. The essence of the applications depends on certain assertions of fact. There is no doubt that all the allegations in this case are based on the evidence given by those three girls. Two of them gave oral evidence and one did not. There is no external corroboration of their evidence and their evidence involves multiple allegations of perverted sexual abuse over many years, often conducted in group activity. There is no doubt that each of these three girls suffered an abusive background in their parental home, have been victims of emotional damage and suffer from educational deficits.
  2. There has been a prolonged police inquiry over very many months, which has resulted in a decision to take no further action, the Crown Prosecution Service having agreed with the police that the evidence available did not meet the evidential threshold for a criminal prosecution.
  3. The manner in which the allegations emerged has been the focus of much of the evidence, coming as it did from diaries which all three girls were encouraged to keep, followed up by long conversations with their foster carers and protracted and repeated ABE interviews, which were by far the longest that I have ever encountered in my experience, and one has to recognise that there are substantial arguments upon which a challenge to the reliability of the evidence can be advanced.
  4. It was against the whole of this background that I thought it right to entertain and consider these applications and submissions. They were spread over three days, including inevitably some preparation and reading time.

 

The Judge derived three questions to be answered

 

First, has the court the power at this stage to hear and determine an application to dismiss proceedings of its own motion under case management powers and/or in response to an application by a respondent that there is no case to answer or in some other respect?

Secondly, if the court has such a power, on what principles or basis should it be exercised? It is right to say that this particular question has never been considered because previous decisions made in the context of their own facts have never really fully determined the answer to question one, as the cases have been determined within that context of their own facts.

  1. The third question is: if the principles are wide enough to cover the circumstances of this case, should the court intervene in some or all of the 15 care cases that are being heard together here?

 

In effect

 

  1. Can I?
  2. If I can, how should I decide whether to?
  3. In this case, should I?

It is a beautiful judgment, right at the end of a very long judgment about findings of fact.

 

Can I?

 

  1. I have come to the conclusion that the correct modern approach to this is to be found in the case of Re T G (Care Proceedings: Case Management Expert Evidence) [2013] 1 FLR 1250.
  2. Paragraphs 24 to 28 are expressed in the typically trenchant language employed by the then President, Sir James Munby, and I have in particular in mind paragraph 27 where he says this:
    1. “In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage) [2002] EWCA Civ 1489. These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence.”
  3. “The judge in such a situation will always be concerned to ask himself: Is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise? If there is or may be a solid advantage for the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence, but if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further.”
  4. I venture with becoming diffidence to add one further paragraph from that judgment, I having been a member of the constitution, and just refer to some words that appear at paragraph 82:
    1. “In a highly conflicted case where permanent removal and placement are serious possibilities, and that is increasingly the case with young children, it is only the judge upon whom the responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for especially on behalf of parents, no stone should be left unturned, however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided.”
  5. I cite that paragraph for two reasons. One, because it indicates that judicial case management is an art form rather than an application of scientific principles, and also because it seems to me that the court intended all its observations to apply right across family proceedings, even if the illustration in the language used by the President was actually taken from a private law case.
  6. As I say, I have concluded that that properly represents the modern approach to case management and, accordingly, I am satisfied that the court does have jurisdiction to bring proceedings to an end at any time before the conclusion of the final hearing. I am satisfied that the combination of statute and rules give the widest powers of control of case and trial management to the individual judge.

 

So yes, the Court CAN

 

(Honourable mention to the case of Re R 2009 ‘So long as the applicant sails on into the gunfire, I think the judge has the obligation to hear the case out. ‘  just for being a lovely metaphor)

 

Now we know the Court can, what are the general principles of whether they SHOULD?

 

What the thrust of this part relates to is that generally if the LA case has collapsed under them they will normally clock that and seek to withdraw or change tack OR the Judge will make eyebrows at them and suggest a short break to consider whether ‘any application might be made’, but the position up until now has been that if they ‘sail on into the gunfire’ the case continues.

The problem has always been that (a) parents are compellable witnesses and can’t simply refuse to give evidence as they would in crime  and (b) the burden of proof is on the LA to prove threshold is crossed. If they haven’t done that by the end of their case, are they allowed to simply proceed and hope that poor evidence from the parents does the job for them?

  1. if the court has a power, on what principles or basis should it be exercised?
  2. Mr Richard Pratt QC in his submissions suggested that its application would be exceptional and sparing, and given that such application has never succeeded, he is likely to be right on that, but the question is whether the court can be more specific in identifying the principles upon which any such power would be exercised. In order to do that, the court, in my judgment, needs to take a substantial step back from the current application and look at the very much wider canvas of judicial enquiry in proceedings under Part IV of the Children Act 1989.
  3. The authorities use a variety of language to describe that process. Some say it is sui generis in civil proceedings, some say it is quasi inquisitorial, and no doubt there are other expressions that can be garnered from the authorities.
  4. In order, I think, properly to understand what lies behind all this, and perilous though the expression so often has proved to be, it seems to me necessary to go back to basics and to ask: what is the purpose of proceedings under Part IV of the Act? It is, is it not, to determine whether any child or children are suffering or are likely to suffer significant harm, and, to paraphrase, that that harm accrues from a deficit in parenting, and, if so, then to protect and promote the welfare of those children using the principles set out in section 1 of the Act.
  5. It is extremely important to underline that in family proceedings the cost of a mistake either way is equally serious. If I make a finding in this case against a parent when I should not have made a finding, not only would that be a gross injustice to the parent, but it would disturb, upset and possibly frustrate the lives of children throughout the whole of their childhood, if not beyond. If, on the other hand, I were to fail to make a finding when I should have made a finding, it would be to expose children immediately returned to that person’s care to wholly unacceptable risk of abuse in the future. The cost either way is equally grave and that is an important factor to bear in mind when one is examining what the purposes of hearings under Part IV actually are.
  6. Moreover, although a determination under section 31(2) to consider whether the threshold criteria are satisfied does not have at its heart the paramountcy of the welfare of a child, these proceedings, like any other proceedings regarding children, always have the welfare of the child as a relevant consideration, and that, of course, must involve the welfare of every child who is subject to these proceedings, all 21 of them. I must consider and reflect on the promotion of that welfare even where the needs of the children are not only radically different the one from the other, but may actually conflict with one another, and that calls for very careful balances, of which this case may well provide a fairly vivid illustration.

 

 

 

  1. I return to the authorities and in particular to the case of Re S- A-K (children) [2011] EWCA Civ 1834, and, again, to some words of Lord Justice Thorpe, which are to be found in paragraph 7 of that judgment, and he says this:
    1. The protection of children in public law proceedings is primarily in the hands of other agencies, but when the case is brought into the judicial arena, the judge is an important partner in the process of child protection. Accordingly it is incumbent on any judge to dig deep, as deep as is reasonably practicable, before arriving at the conclusion that there is no danger to the child and that the child’s account of abusive experience is incredible, not to be believed. It is not a case in which the judge can say that the child is mistaken. A rejection of the local authority’s case inevitably carries the conclusion that the child had made a false allegation against her stepfather. That outcome should not be reached without the judge having the best available evidence.”
  2. Now, what does that mean in working practice in a trial under Part IV of the Children Act? In my judgment, it means that ordinarily any judge should hear all the available evidence, and that should include the evidence of all those with care of the children who are subject to the application.
  3. There is a very good reason for that, as is readily apparent from guardians’ reports in this case; they are the people who know the children best, they are the people who have the first responsibility for protecting the welfare of those children, and again, venturing my own experience in these matters, I have often found the evidence-in-chief of parents to be the most illuminating evidence in many a trial for good or ill, it has to be said.
  4. If this is so, that is to say that the judge should hear all the available evidence including that which I have described, it will be wholly unsurprising that applications of the sort made here are not usually made and do not succeed, and why it is said that they have no part in Part IV proceedings. But whilst that may be the case, it begs two questions, which it seems to me the court in good conscience should confront.
  5. First: are there any circumstances in practice then where the court will intervene or is this simply a power which is devoid of practical expression? Secondly: how does all that fit with the concept of the local authority having the burden of proof in relation to the establishment of the threshold established under section 31(2) of the Act?

 

Looking at this further

 

  1. …human rights and common justice require that the court should have this power for use as and when it may be necessary. Speculation about when and how it might actually be used is probably as unwise as it is potentially fascinating, and so one confronts the question about what are the implications of all this upon the obligation of the local authority to prove its case.
  2. The position in the criminal law is fairly straightforward. That is to say, except in those rare cases where the burden of proof is reversed, as occasionally it is, there has to be a sufficient case based entirely on the evidence adduced by the Crown. In civil proceedings, the problem does not arise in practice because any person seeking in civil proceedings to make a submission of no case to answer will normally be put to their election to call no evidence and, accordingly, the problems that were raised by Alexander v Rayson do not arise in practice.
  3. In family proceedings, that simply cannot be done. No person can be put to their election because they remain a compellable witness and one with an obligation to go into the witness box. Accordingly, since that cannot be done in family proceedings, in my judgment the proper time for the court to apply the burden and standard of proof is not at the conclusion of the local authority case but at the conclusion of all the evidence which the parties want to give and the court considers that it should hear, and therefore that time in this case has not yet arrived. That approach is wholly coherent with the essential and unique nature of family proceedings, whether described as sui generis, quasi-inquisitorial or whatever.
  4. Now, I should stress that none of this must be read as inhibiting in any way the duty of a judge to control proceedings and to give such indications as he or she might think right as to how a trial should develop. I am considering the specific circumstances of where there is a formal application formally resisted by other parties to the proceedings.
  5. If it be right then that the broad approach is that these powers will only be used where there is something that impinges on the integrity of the trial process or otherwise is seen as to amount to an abuse of the process of the court, the necessary scope in relation to the third question will be very limited.

 

 

So the Court can decide that there is no case to answer and can hear such an application but it is an application that is highly unusual, and the circumstances in which it would succeed would be narrow. The Judge also felt that it should be considered at the conclusion of the evidence (or at least the conclusion of the evidence that the parties want to give and that the Court considers that it should hear)

I think what might come about are applications that the LA haven’t established that threshold is crossed, my client would prefer not to give evidence unless the Court considers that it SHOULD hear from the parent, and if not, then we would move onto submissions.  The question of whether a Local Authority who are not over threshold, but not necessarily a mile away from it can get there with the parents evidence as the parents are compellable witnesses and adverse inferences may be drawn if they refuse to be compelled is a question for later litigation. At the moment, we don’t know (but it is PROBABLY yes unless or until the Court of Appeal say not)

It is not a surprise that the answer to the third question – should I do that in this case, was no.