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Category Archives: emotional harm

Tense – nervous, headache

Posted on September 19, 2018 by suesspiciousminds

 

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

 

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

 

Hence the title, and by now, you could probably do with an Anadin yourself

 

 

 

Re K (A child : Threshold findings) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

 

  1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
  3. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

 

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

 

  1. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
  3. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
    1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

 

 

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

 

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

 

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

 

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

 

  1. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
  3. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
  5. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
  7. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
  9. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
  11. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside

 

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Posted in assessment of risk, case law, emotional harm, threshold criteria and tagged , , , , . Bookmark the permalink.

Is, Was and Ever Will Be

Posted on June 7, 2018 by suesspiciousminds

 

 

This is a Court of Appeal decision in relation to significant harm in care proceedings, where the harm was said to be emotional harm. And this is always a hot-button topic.

 

Re S & H-S Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1282.html

 

It also deals with the grammatical weirdness that is in the Children Act at section 31, which we all tend to forget to an extent. The Act never talks about whether the child  ‘has suffered’ significant harm, although that’s the language that we all use.  Instead it says “Is suffering” and the law has subsequently developed to say that you are looking at the past, to when protective measures were taken as the relevant date.   (That was a solution derived because care proceedings were being issued where a child had suffered significant harm and then gone into foster care or been placed with a relative – so on the day of issue, it would be inaccurate to say that the child ‘is suffering’ significant harm. So we routinely use the present tense of the Act to talk about the past tense of the relevant date)

 

In these proceedings, they were initiated on the basis of allegations about the children being physically harmed by father, and the LA accepted freely that at the time the proceedings started, they had no intention of issuing proceedings in relation to mother’s care.  The allegations about father fell away – the Court found that he had physically chastised them, but left no marks, and that they had not suffered significant harm as a result of his chastisement and it was not over-chastisement.

However, within the proceedings, the assessments that took place highlighted emotional harm, and in particular the children’s poor attachment to their mother.  The Court found that the children had suffered emotional harm.

The appeal was brought on the following points

  1. The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:
    1. a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings.

b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.

c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.

 

So you can see that timing is important. At the time proceedings were issued, one could not now say that the children ‘is suffering significant harm’ (I know, the tenses make me feel queasy too. I wish the Act just said ‘has suffered’ but it doesn’t.)  Any harm actually occurred within the proceedings. So the first limb isn’t met, and the LA would have to rely on the second limb, that there’s a likelihood of harm in the future.

 

The other bit I’m interested in is

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

 

We hear a lot about attachment in care proceedings, and an awful lot of what we hear is misusing terminology and confusing quality of relationship or emotional closeness with attachment, which is not something you can assess by reading some contact notes or watching mum play with a toddler.  We also hear a lot about  attachment problems without ever giving the context of how prevalent poor attachment is in the general population. Trust me, I’m not saying that flawed attachment has no impact on a child’s childhood and later life (seriously, trust me, I’m well aware of how many of my own problems are due to exactly this issue), but one needs to be careful if pathologising something which is not that unusual.  Remember, the wording of the Act says that the harm has to be attributable to the parent not providing care which it would be reasonable for a parent to provide – if a third of parents in the general population have difficult attachment styles, whilst that may be harming the child, is the parent culpable and behaving unreasonably?

 

The Court of Appeal said this :-

 

  1. Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:
      1. i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.

ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.

iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.

iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.

v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.

  1. The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.
  3. Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:
    1. a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.

b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.

c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.

d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.

e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.

f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.

g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.

The Court of Appeal were critical of the Judge’s failings in the judgment, particularly the conflation of emotional harm and significant harm, and linking the comments on harm to the wording of the Act.

However

  1. As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.
  3. The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.
  5. It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.
  7. This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.

 

 

  1. In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.
  3. For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.

Note that even though the Court of Appeal are telling the Judge off for not using ‘is suffering’ as the test, they themselves slip readily into the language ‘was suffering’.  It is almost impossible not to do it.

 

(I was somewhat surprised that this appeal didn’t succeed – on my reading there were enough failings in the judgment to overturn it, but the Court of Appeal felt that there was sufficient cogency to the judgment in full that they could apply a little bit of Polyfilla to the cracks, rather than declaring that it was so flawed it had to be reheard. I can see that they considered that it was slightly loose use of language rather than a failure to identify whether the children met the s31 test)

 

The Court of Appeal gave a coda of lessons to be learned (whilst not noting that they’d not followed their own lessons in the very same judgment, cough)

 

Lessons for the Future?

  1. Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.
  3. In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
  5. When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
  7. A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
  9. Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
  11. At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
  13. The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.

 

 

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Posted in case law, emotional harm, threshold criteria and tagged , , , , , , . Bookmark the permalink.

Sibling rivalry

Posted on July 27, 2015 by suesspiciousminds

 

In Re P (A child) 2015, His Honour Judge Wood had to deal with an application for a Care Order for a girl who was sixteen years and four months old. That in itself is unusual. Even more unusual, the central allegation was that of physical abuse (which was disputed by the family). More unusual still, the allegation was that the girl had been physically assaulted by her older brother.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B101.html

 

Now, if you have a sibling, you might be thinking along similar lines to my initial reactions.  My sister and I fought, not like cat and dog, but like two fighting roosters whose feed had been laced with PCP. We fought about absolutely everything. No topic was too trivial , no imagined slight too minor.  That did occasionally spill into physical conflict. I’m sure that my sister has many dreadful stories about me – many of which would be true, and I will simply indicate that there was a day at Pwllhlei Butlins putting green where she hit me with some degree of force on the nut with a golf club  (from behind) and when it knocked me out, ran off and spent the rest of the afternoon in the arcades playing Burger Time.  She also once hit me full in the face with a tennis racket swung with genuine purpose and intent (but as I recall, that was warranted, though painful).

 

This story, however, goes rather further even than those (admittedly shameful) incidents.

 

At 18.11 hours on Monday, 20th June 2014 P, a girl born on 28th October 1998 and now aged 16 years 4 months, was admitted by ambulance to the emergency department of Hospital A. She was found to have six distinct areas of injury: the first were three red linear marks on the right upper thigh, 1cm by 6cm long; second were two linear marks on the outer aspect of the left forearm, 4cm by 1cm wide; the third was an oblique red mark across the left upper outer thigh, 10cm by 1cm; the fourth was a bruised area, circular in shape, 3cm in diameter with a contusion over the left shoulder tip; the fifth was a linear bruise to the left upper outer arm approximately 4cm by 1cm and the final were a number of red marks across the lower thoracic area, that is to say the back, approximately 3cm by 1cm to the left and right of the midline.

 

 

The fact that the girl had been injured was not therefore in dispute, what was disputed was how these injuries had occurred.

The girl said that she had been at home, watching television and that she and her brother had had an argument (he wanting to turn the channel over to watch football and she wanting to finish watching what she had started), whereupon he started hitting her, escalating to hitting her with an iron bar.

 

The brother said that the girl had come home from school, complained of being hot and fainted from the heat.

It had of course been June when this happened, so perhaps it was hot. However, the girl had grown up in Nigeria and only been in England for a year.   And the family were living in Sunderland. Perhaps the weather in Sunderland that particular day was so hot that a girl who had spent 13 of her 14 years in Nigeria was unaccustomed to such heat and it caused her to faint.

 

The weather in Sunderland on 20th June 2014 was pretty hot for Sunderland. 20 degrees Celsius.  Looking at the weather in Nigeria in the year before, when the girl had been living there, 20 degrees C would represent a brisk chilly day in Nigeria, with a hot day being about 33-36 degrees.

https://weatherspark.com/history/28568/2013/Ikeja-Lagos-Nigeria

 

I have to say that the ‘fainting from heat’ explanation is in need of some work.  I suspect that “Girl Faints from Heat in Sunderland” would be headline news in the North East were it ever to happen.

 

[Actually out of curiosity, I just Googled ‘Sunderland heat wave’ ready to tell you that there were no results, but there were 168,000. Perhaps many of them were along the lines of  “Ed Milliband making a comeback as Labour leader in 2020? That’s about as likely as a Sunderland Heat Wave”]

 

The brother’s evidence became less credible when, for example, he denied that the iron bar was something that he had ever seen before and then retracted this when it was suggested to him that his DNA would be on it.

 

The mother, who had been present, and her father (who had been in Nigeria) both supported the brother’s version of events.

The cultural issue of course raised its head, and the Judge dealt with that

  1. Before considering which evidence I prefer, I want to say a word about cultural issues. This family come from a remote part of Nigeria. English is not their first language, albeit they have a good command of it. They are, as I have said, born again Christians and they seek to live their lives by a strong religious code. Their cultural background is in many ways very different to that which exists in the north east of England. They do things in Nigeria which are acceptable there but not here.
  2. Specifically, physical chastisement of children is normal. The father’s evidence was very clear that for what he called an accountable child, probably from the age of 10 onwards, whipping a child on the legs with African broom or with a cane as part of a process of punishment and learning is normal. It is not so long ago, certainly within the lives of some of the lawyers here, that such was acceptable in this country and so the court has no difficulty at all in accepting that but, given the way that this case has proceeded, its relevance is limited because it is not said either by the mother or R that this is what happened to P. Rather, they say she was not struck at all but I do accept that P and R are likely to have a more benign view of physical chastisement on a child than most British people would have in 2015. All that said, I agree with Mr Donnelly that this is not a case about chastisement in a different culture but a case about significant harm in the care of a mother.
  3. I accept that, further, there is a strict hierarchical structure within families whereby the father of the house, whether he is there or not, has to be consulted on important decisions. That has had significant practical consequences given parental separation here and I accept that it may have played some part in the refusal to consent to P being accommodated, as well as the initial engagement with the Local Authority and possibly even going to court in the early stages which I have no doubt is both a frightening and possibly shameful thing for the mother, in particular, to have experienced. So I have all of these factors very much in mind in making the decisions that I have to and I will return to this in due course.

 

 

The Court had to consider the evidence given by all parties, and of course the legal framwork, which is all very carefully set out. It is a very well constructed judgment.

  1. So which evidence do I prefer? Unhesitatingly, that of P. There is no more explanation for her lying now than there was in June last year. The lengths to which she went in feigning a faint point to the seriousness of the assault that she suffered. The instincts of the ambulance man first on the scene were, in my judgment, entirely correct. The injuries are entirely consistent with her account. They are all about the same age and fresh. They have the characteristics of being hit with an object such as a table leg in their linear appearance. They affect the outer aspects of both thighs, the outer aspects of the left arm and the back. They are not consistent with a simple collapse to the floor. They are, as Dr Mellon said but the mother, father and R denied, characteristic of defensive injuries. It appeared to be beyond the father and R’s comprehension that P would not fight back. She is described elsewhere as an underweight, 15-year-old girl of slight build pitched against a 19-year-old male who appeared to be over six feet high and who was armed and one might have thought that that was a sufficient reason to adopt a defensive position rather than try and fight back.
  2. There is simply no other explanation for these injuries, just as there is no reason put before the court as to why, as R said, P would want to put herself in care and be separated from her family. I reject her father’s submission that because P has told him that she has been refused permission to go to church and to foster care, to the foster carer has said that she does not want to go, that she is demonstrably untruthful or unreliable. There could be many reasons for two different accounts at different times and there has been no opportunity to investigate the circumstances in which those accounts were given in any event. I also reject R’s submission that because she identified her shoulder to the ambulance man, she was thereby not complaining of being beaten by her brother. The medical evidence, in my judgment, is clear. There is no alternative, credible explanation.
  3. The evidence of the mother and R, far from causing me to question her veracity, confirms that they were neither credible nor reliable. I found R to be evasive, argumentative and unwilling to confront the truth staring us all in the face. I could say more about it but I am satisfied, as it happens, that in her letter P has described her brother to a tee:

    “My brother is not a type of person that says sorry so easily. He is a type of person that is so proud and full of himself.”

    It seemed to me that that was a very accurate description of a rather arrogant and self-centred young man. I am quite satisfied that he is an intelligent and articulate man. Having seen him give his evidence and be cross-examined, I am quite sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him credible and reliable.

  4. I am satisfied that R lost his temper with his sister over an argument about the television. He wanted to watch the five o’clock football match and would not let her finish the programme that she had been watching for some time since she came in from school and, not for the first time, he responded with violence. I am satisfied he beat her with a table leg and caused the injuries that I have noted and, furthermore, I am satisfied that P’s mother knew that this is what had happened for the very reason that she saw it. I pay due regard to what her husband has said about his belief in her veracity but I do not believe that she intervened but, in seeking to deflect attention at the outset, suggested that very thing to the police only to back away from it, as she did, when the seriousness of the incident became known.
  5. P’s shock and distress at her mother not intervening was marked and entirely understood. Although the mother told me that both R and P are her children and that she loves them equally, by her conduct she has demonstrated that, in fact, she has put R’s interests before her daughter. She has protected him when she knows the truth of what he has done. She has almost inexplicably abandoned – and it is not too strong a word – her daughter by denying her contact, putting up as obstacles the Local Authority’s perfectly reasonable conditions. Most parents would walk over hot coals to see their children, however objectionable the terms, because to do so would be to prioritise the child and to meet the child’s needs to see her family. Furthermore, she is not ignorant of the role of social workers. Her professional training and experience over a period of almost ten years contradicts her claim. She may very well be ashamed at the misfortune that has befallen her and her family but she simply has persistently refused to engage in this process as I will explain.
  6. So looking at the threshold document prepared by the Local Authority in the bundle at A16, I am satisfied it is made out as pleaded. That refers in paragraph 4(a) to the injuries themselves, in paragraph (b) to R being the cause of the injuries, being struck by an iron rod and that it was causing her pain, in subparagraph (e) that the mother has been complicit in that physical abuse perpetrated by her son in that she knew or ought to have known it was happening and had failed to tell anyone so as to protect her own interests. She misled professionals and, indeed, now the court about her son having assaulted her daughter and instead alleged that P is lying about the abuse she has suffered and following P’s admission to hospital and subsequently care has, as I have said, abandoned her daughter preferring to protect her son.

 

The family in this case had adopted a strategy of not engaging with the assessment or coming to contact, which is the all or nothing approach that only really ever works if the Court find that the threshold is not met. In a case like this, where the Judge found that the brother had caused very serious significant harm to the girl by hitting her with an iron bar, and that the mother had been in the home at the time, had not intervened and had lied about it, that is not really giving the mother much chance of a happy outcome.  They absolutely would not countenance the brother moving out of the home so that the girl could come home.

 

Even then, though, the Judge was holding out a hand and inviting the parents to take it

I want to say this at this stage: it is still not too late for this family, mother and R in particular, to accept the findings of this court, to make a suitable admission and to work with the Local Authority to reduce the risk both to P and any other children with whom they may be concerned – a very particular concern of P as she said in her letter to me

 

The Court had to make the Care Order, there was no other option

 

This is a very, very sad case. It began as a one issue case, the assault. It could, as Mr Rowlands has said, have had a very different outcome. That it has not is entirely due to the family and not their daughter. It has ended up as more than that because of the astonishing and persistent denial in the face of all of the evidence and the near complete rejection of P by her family. The harm to her from the latter is likely to outweigh the harm from the former in the longer term but, I repeat, even now it is not too late to reverse that process. These parents have an attractive, appealing and loving daughter who has shown the Christian virtues of forgiveness and love that they taught her. She really deserves a very much better outcome than this but I am afraid the solution lies entirely in their hands.

 

One particularly worrying feature of this case was the removal of the child by Police Protection. The mother having refused section 20 and the girl at that time not being sixteen so she was not able to accommodate herself using section 20 (11).   However,

I want to register my extreme concern at the level of force which was used when the police recovered P from her home when she ran away from foster care in September. She was handcuffed, under what power is not clear, and the incident is said to have been recorded because of its nature. This incident needs to be noted and taken up by the Local Authority in conjunction with the police. It is ambiguous from the statement as to whether a social worker was actually present when it happened. It has not formed part of the material evidence before me but it was an extremely unfortunate incident, it was harmful to P that her guardian was rightly horrified about. I do not know what the Local Authority response to it was at the time, what its response has been since and I do seek separately an explanation from the Local Authority and the police as to the circumstances that were pertaining and as to what measures have been devised and agreed upon to avoid a repetition of such an event in the future.

 

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Who has the burden of proof?

Posted on May 25, 2015 by suesspiciousminds

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

https://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

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Allegations of abuse against a father

Posted on October 8, 2014 by suesspiciousminds

Reported cases in private law where serious allegations of sexual harm are made against a father against a backdrop of separation and acrimony and disputes over the children are becoming more common. They are always extremely difficult. And these days, more and more, they may begin as private law cases but end up as public law cases.

 

The Court is generally left with four choices when faced with allegations of this kind

 

  1. The allegations against father are true, with all the consequences that that will mean for his relationship with the children
  2. The allegations are not true, but they were an honest mistake (with the hope that once the Court has given that judgment, everyone can move on)
  3. The allegations are not true, and they were made with the honest belief of the mother that they were true (again, with the same hope as above)
  4. The allegations have been fabricated by the mother with the intention of hurting father and frustrating his contact.

 

In this case, Hampshire County Council v Mother and Others 2014, there are two linked judgments.

 

The first http://www.bailii.org/ew/cases/EWCC/Fam/2013/B19.html was in December 2013 and was the finding of fact judgment.

 

That concluded that the allegations against father were not true, and that mother had played a part in bringing them about

 

My finding is that while Mother has indeed been the victim of her psychological problems, she has also consciously created some of the allegations here. I have been told that the Guardian is also of the view that there is a combined explanation for the allegations. The timing between contact re-starting and the next allegation being made is too much of a co-incidence for there not to have been some volition on her part. There are also examples of Mother embellishing stories as – the addition of the alleged threat of self harm she over-heard Child make to a nurse or doctor on the 31st August when she was questioned about it by MG is a good example.

 

 

It must be understood by Mother that her allegations that Father has sexually abused Child have been found to be totally unfounded, created by her both unconsciously and consciously. She must also understand that what she has done has been hugely emotionally damaging to Child, who will take a long time to recover her own psychological equilibrium, even with her Father’s help. She must never allow herself to make such allegations again, or she will risk never seeing her daughter.

 

 

An interim care order had been made in October 2013, placing the girl in foster care.

 

 

The second judgment http://www.bailii.org/ew/cases/EWFC/OJ/2014/B126.html

 

relates to the final decisions in the case, mother having been given six months of time to reflect on the findings and move forward.

 

Sadly, she had not been able to do so. That led to the child being placed with the father, that mother would have seven contacts per year and that there was a s91(14) order meaning that mother would be unable to make any further applications to Court without leave.

 

(The Court note in that analysis that it is not lawful to attach conditions to a s91(14) order but did agree that it would help to tell mother the sort of changes that she would need to be making for such leave to be granted)

 

One of the difficult features in this case was that mother’s position if anything had hardened in that intervening period, probably not helped by the fact that her therapist was supportive of her belief that father had abused the child, and so were her family.

 

(MG was an expert in the case, who had made some recommendations as to the best way of moving mother forward after the finding of fact judgment)

 

 

MG has been cross examined as to her findings and conclusions in this hearing. She said that since the last hearing it is a great pity that her recommendations as to treatment for Mother have not been taken up. She had recommended that Mother be seen by an independent psychiatrist to formulate a treatment plan to reduce her anxieties and her medication. She said that therapy should be found for Mother in conjunction with the psychiatrist. Instead Mother has been discharged by her treating psychiatrist in the NHS mental health service with a diagnosis of “no serious mental illness,” which MG said is regular practice these days by treating mental health professionals. And instead of seeing an independent psychiatrist, she has found a psychotherapist who she consults by webcam, and who has accepted without question everything that Mother has told her about her allegations of sexual abuse against Father. MG said that it is a great pity that this treatment is not evidence based and does not challenge her at all, so the net effect is that Mother is no further forward with any form of treatment, but appears to be reinforcing her views by getting professionals on-side.

 

Mother’s actions since the December hearing, it should be recorded, have been to try and shore up her position that the allegations against Father were true. She has repeated them fully to her psychotherapist, who wrote a lengthy letter to the court on her behalf. A mental health professional contacted Children’s Services on her behalf in connection with the allegations. Her vicar has become involved in the case, getting up a petition with over 100 signatures from churchgoers for the return of Child to Mother’s care, and attending contact uninvited. And finally Mother has re-asserted the truth of the allegations in a document written by her for a contact planning meeting in January 2014 after a difficult contact session.

 

 

[The Court doesn’t seem to have picked up on the point that it is unlawful for mother or others to identify that her child is the subject of ongoing Court proceedings, which someone must have done in order to sign the petition]

 

 

These cases are all really hard. For a father, to be accused of sexually harming your child when you have not done it must be one of the worst things imaginable and if the Court decide having tested the evidence that you are innocent you think that this will be an end of the nightmare, but it isn’t. And looking at it from the mother’s perspective, either the allegations are true and the Judge has got it wrong (which is not right legally, but is a human reaction) or by that point your relationship with the father is so corrosive and damaged that you have convinced yourself that he IS a risk and yet nobody will listen to you.

 

 

Looking at it from a purely forensic and legal perspective, the only thing for a mother to do in this situation is to say that the allegations were made in good faith and to protect the child, but that she now accepts the judgment.

 

But human beings don’t make decisions based on pure forensic legal considerations but on emotions and feelings.

 

I am reminded of the Blackadder lines

 

It is so often the way, sir, too late one thinks of what one should have said.

Sir Thomas More, for instance, burned alive for refusing to recant his Catholicism, must have been kicking himself, as the flames licked higher, that it never occurred to him to say, “I recant my Catholicism”

 

 

In a case like Hampshire, where mother is given the chance to recant her allegations and not only doesn’t do so, but proclaims them anew, it is not a very difficult decision for a Court to make.

 

On the ground, for a family and a child, they are some of the hardest things of all.

 

The mother and her side of the family are never going to accept that the child should be with father, they are always going to feel that mother has been punished for speaking out and saying the truth and that the child is in the most dangerous placement possible. What does that do to their relationship with the child? What are those contact sessions like? How will difficult questions raised by the child be answered?

 

I’ve got very little sympathy for mothers who perniciously fabricate such allegations about fathers (the option 4 in my original list), but what about those mothers where the allegations were made in good faith and they can’t move on from “it is my child, I KNOW in my heart that this really happened”?  (options 2 and 3)

 

Legally and forensically it is easy – recant your Catholicism and accept the judgment. I can’t help but have some sympathy for mothers in that position though. What, they might say, if the Judge has got this wrong? People make mistakes – Courts get things wrong.

 

If you are in that position, how easy is it to just say “I give up, okay, it never happened”, when every fibre of your being says that it did?

 

What, they might say, if the Judge thinks that on the balance of probabilities, it is 55% likely that the allegations aren’t true. For the law, that proves it. But for me as a mother, what about that 45% chance? How could I, as a mother, be happy that there was a 45% chance that my child has been abused?

 

[None of that counts in legal and forensic terms – once the Judge has made a decision, you either accept it, or you successfully appeal it. The Court’s decision means that all of that doubt and uncertainty is removed and that what the Court say happened IS what happened]

 

We are hearing more and more from the Courts that it is not the job of the Court to fix people, to make them better, to solve their problems.

 

(for example T v S http://www.bailii.org/ew/cases/EWHC/Fam/2013/2521.html

 

The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father’s complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father’s ambition to achieve.

 

And Re K http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

“In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.”     )

 

 

And to an extent, that is right. The Court don’t have a magic wand to make things better, they don’t have resources to fix people.

 

Indupitably, however, there are people who come out of Court proceedings substantially more broken than when they went in. I don’t have an answer, and I suspect we’re less likely to get one that we were pre Austerity.

 

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Posted in case law, children and families act 2014, emotional harm, experts, fact finding, private law and tagged , , , . Bookmark the permalink.

Private law appeal (unsuccessful)

Posted on June 5, 2014 by suesspiciousminds

The Court of Appeal have given judgment in Re H (Children) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/733.html

 

This relates to an appeal from the decision of Parker J to make an order transferring residence of three children from their mother’s care to their father’s care AT AN INTERIM STAGE – the case is not over and further steps are being taken prior to the final hearing of the private law applications.

 

The interim change of residence followed a finding of fact hearing in which the mother made very serious allegations about the father – including that he had raped her and hit the boys with a belt. The boys had made that allegation during police ABE (Achieving Best Evidence) interviews.

 

The Court of Appeal are quite right, to make sense of the appeal, one needs to look at the context of the litigation, which they set out in summary form

 

  • In order to make sense of what follows, it is necessary to set out the bare bones of the chronological history which catalogues the development of evidence with respect to each of these two core themes.

 

 

 

  • On 4th April 2013 the mother applied for an injunction against the father under the Family Law Act 1986 and made applications for residence and supervised contact orders with respect to the children. In her witness statement supporting those applications the mother did not complain that she was the victim of any physical or sexual violence from the father save for one occasion nearly twenty years earlier prior to their marriage. She did, however, allege that the father was highly controlling and threatening in his manner towards her and that he would regularly assault the children and, in particular, would take a belt to them if he considered that they had misbehaved. The father issued a counter application for contact and specific issue orders regarding the children’s schools.

 

 

 

  • The first court hearing took place on 15th April 2013 before DJ Hodges. At that hearing the mother’s position had changed from one of supporting supervised contact between the children and the father. Her case was that the elder boy, A, opposed the two younger children having direct contact with the father and the mother herself therefore opposed direct contact for any of the children. At the hearing the District Judge explicitly stated that the court would start with the presumption that children should grow up knowing both parents. Some 2 hours after the conclusion of that hearing the mother and A attended the local police station and made allegations about the father’s behaviour. The police record shows that, in addition to the allegations of violence towards the children, the mother alleged that the father had also been violent towards her, but that his abuse of her was “mostly emotional and sexual”.

 

 

 

  • On the following day, 16th April, police visited the mother and the children at the refuge. Notes of that visit indicate that C and A made allegations of physical assault by their father, but that these were not substantiated by B’s account. The mother’s complaint was of emotional and mental abuse. She made an historical allegation that he had raped her and she stated that he had physically abused her, but that this had not happened for some years. In subsequent police interviews (in April and in September) the mother came to make allegations of repeated rape and controlling behaviour.

 

 

 

  • On 23rd April A undertook a formal Achieving Best Evidence [“ABE”] interview with the police in which he made various allegations of physical assault by the father, including the use of a belt.

 

 

 

  • Matters then took a striking turn when, on 30th April, the father filed a statement exhibiting a number of notes and other documents written by the mother which described how she had herself been violent to the children, that she was unable to cope and was unable to control her consumption of alcohol.

 

 

 

  • At his subsequent police interview the father denied the allegations of rape, violence and controlling behaviour. He accepted that during one of A’s violent outbursts he had physically intervened.

 

 

 

  • The first hearing before Parker J took place on 7th May 2013 in which the judge heard oral evidence from the mother, father and paternal grandmother. The judge’s judgment on that occasion indicates that the background material produced by the father, originating as it did from the mother’s own hand, suggested that the father’s case that the mother was emotionally very troubled, was borne out. The judge said that the material that had been produced “worries me in the extreme, particularly the mother’s reference to drinking, Alcoholics Anonymous and being physically out of control with regard to the children”. The case was thus one in which allegations flowed in both directions.

 

 

 

  • Having heard the mother’s oral evidence with regard to the father’s behaviour and, in particular, his use of a belt on the children, the judge was plainly unimpressed with her credibility and stated “I thought that the mother’s evidence with regard to the belting was all over the shop to put it bluntly as to what actually she said had happened and what precisely she knew”. The judge was, however, plainly impressed with the “quite excellent” paternal grandmother who the judge described as being “true as steel, stout as oak”.

 

 

 

  • As a result of this, her first encounter with this case, the judge developed a very clear strategy as to the way forward. Whilst expressing concerns that the mother’s presentation, and the children’s allegations, might indicate that the children had become “recruited children”, in the sense that they had fallen in with their mother’s view of matters, the judge was prepared to accept, for the moment, that these matters were as a result of her troubled emotions and were not deliberate acts. The judge therefore ordered that the two younger children should be made available for contact with their father each Saturday during the day, but that all such contact should be supervised by the paternal grandmother and a paternal aunt. A was free to attend contact with his father and brothers should he desire. The judge fixed a further hearing for the end of June.

 

 

 

  • Three days later, on 10th May, the mother made a without notice application to stay the contact order. Fortunately it was possible for the father and his legal team to attend court on that hearing before Parker J, who, having heard the matter, dismissed the mother’s application. It is apparent that, again, the judge heard oral evidence from the mother on that occasion. The judge records the mother as saying that she was not relying on her serious allegations of domestic violence against herself and the children in opposing contact, but upon the need for the family to “heal” from the difficult marriage and marital circumstances and for the children to repair their relationship as siblings before contact could take place. The judge expressed great concern about what she perceived as the mother’s shifting stance in the proceedings, which did not demonstrate a solidly-founded mindset upon which the court could place any confidence. The mother’s application for a stay was founded upon A refusing point blank to attend any contact with the father and the younger children being said to be visibly upset and awake all night after being told of the proposal for contact. The judge on this second hearing expressed herself as having far more cause for concern as to the extent to which the children had been drawn into adult concerns and adult perceptions. The judge considered that the mother’s “havering and wavering about what her case actually is” supported her view that a firm grip was needed to be taken on contact before there was further opportunity for matters to deteriorate. The judge therefore repeated that she expected contact to take place in accordance with the order.

 

 

 

  • On 28th June all three children were interviewed by police and made allegations of violence against their father.

 

 

 

  • The judge had directed the local authority to provide a report pursuant to Children Act 1989, s 37. In that report, which is dated 26th July, the local authority recommended that no contact with the children’s father should take place “for the time being”.

 

 

 

  • At the end of September, and again in a revised document one week later, the mother filed a detailed schedule of allegations. That second (revised) document raised, for the first time during the court process, allegations of rape “on numerous occasions” from l992 onwards.

 

 

 

  • At this stage the father filed additional material including video, audio and photographic evidence which included a film apparently taken by A of a violent assault by C on B. It was apparent that the father was not present in the house and the children were in the care of the mother, who, apparently, can be seen ineffectually attempting to stop the assault and then leaving the room. This material was viewed by Parker J during a hearing on 29th October. That hearing, which had been intended to be a substantial fact finding process, was thwarted in two respects. Firstly, sadly, the mother’s father had died some five days earlier and she was not available to attend for all of the three or four day trial. Secondly, as a result of a failure by the police to respond to orders for disclosure, the court did not have access to key police records. The case was therefore adjourned part heard. However, at this hearing the court again heard evidence from the mother, father and paternal grandmother. In a short judgment given on 30th October the judge concluded that the risk of the children being put under pressure by the mother was very high in the light of the mother’s inability (apparently demonstrated in the witness box) to restrain herself in airing what she says about the father, including allegations of rape, in the children’s presence. The judge concluded that professionally supervised contact was not in the children’s interests, as there was a high risk that the children would understand that they should behave badly at contact so that this behaviour would be seen by the contact supervisors.

 

 

 

  • Although the judge was plain that the fact finding process was not concluded, and that she kept an open mind, she was struck by the fact that the two younger children had not made assertions of being belted by their father until after the judge herself had made her adverse comments relating to the mother’s oral evidence at the May hearing. The judge seriously entertained the view that the younger children may well have sought to provide corroboration for the allegations that were being made by picking up from the mother’s conversation, either directly with them or by overhearing what she said to A, what the issues in the case were. The judge therefore considered that contact should be reinstated to the father as soon as possible for the younger two children. The judge was clear that, because of A’s alliance with his mother, he should not attend those contact visits, but could, if he wished, have supervised contact with the father. The matter was set down to conclude the fact finding process at a two day hearing on 19th December.

 

 

 

  • Between the October and December hearings contact took place, but not without incident. It is not necessary to spell out the details, but in consequence of the difficulties on 4th December the father applied to enforce the contact order and applied for a residence order with respect to the two younger boys.

 

 

 

  • The fact finding hearing concluded on 19th and 20th December with judgment being given on Monday 23rd December. On the first day of the hearing the court ordered that B and C should stay overnight that night with the father. During their stay the two boys received a text message on their mobile phone from their elder brother A encouraging them to disrupt their time with the father. Part of the message read “fight, break stuff and argue to get out of this situation…you know what to do to get out of this situation…if you don’t act [F] will have custody of you after tomorrow. Good luck. Break, destroy and burn.”

 

 

 

  • At the conclusion of the hearing on 23rd December the judge made an immediate order transferring residence of the two younger boys to the father and making a residence order for A to the paternal grandmother. It is against those orders that the mother now seeks permission to appeal.

 

 

The appeal was centred around 3 issues

 

1. That the judge had come to conclusions prematurely about the allegations, making up her mind before hearing all of the evidence. In part because the earlier history of the litigation had set her mind against the mother’s allegations before the evidence was properly tested at a finding of fact hearing.

2. That in meeting the boys whilst the finding of fact hearing was going on, the exercise crossed from the appropriate one of familiarising the children with the Court and the process into an inappropriate one of gathering evidence  (I note, in passing that Parker J was of course the Judge who was recently criticised by the Court of Appeal for just this issue, having asked a child some 87 questions during an hour long interview http://www.familylore.co.uk/2014/05/re-kp-childs-meeting-with-judge-is-not.html )

 

3. That the Judge had decided that the case warranted an expert of particularly high calibre to assist, but then went on to decide that as the expert she had in mind was not available, no expert would be instructed.

 

[For my mind, looking at this purely from the outside, the third point is the best one, but relatively little was made of it]

 

Point 1 – the appellant claimed that the Judge had prematurely reached conclusions and as a result had curtailed mother’s ability to call witnesses and to put matters to those witnesses who had been called (regular readers will know that this is the Jones v NCB point – has the Judge ‘descended into the arena and become a participant in proceedings’ ?

 

This in part is complicated by the fact that the Judge had previously conducted a hearing in the case, and evidence had been heard during that hearing. Was the Judge entitled to rely on the impressions she formed of the evidence in the earlier hearings, thus allowing her to fairly restrict evidence and the extent of the evidence this time around? The Court of Appeal said yes, she was.

 

  • The range of detailed points about the judge’s conduct of the proceedings all, to a greater or lesser extent, come back to the central submission that the judge formed a premature conclusion on the factual material which was adverse to the mother’s case. That the judge had formed a preliminary view by, at the latest, the end of the October hearing, seems clear. In the light of that view, and conscious of the very tight timetable within which the December hearing had to be completed (given that the judgment was in fact handed down on the first day of the vacation), the judge may have been justified in excluding certain matters entirely from consideration in oral evidence, limiting the witnesses and the time available for cross-examination. On this point Mrs Crowley’s core submission is that the judge was wrong to use the early adverse view she had formed of the mother’s evidence to determine the allegations that had been made by each of the three children and to do so without a proper evaluation of the primary material that only became available to the court at the December hearing. That primary material comprised of the disclosure that was received from the police, including, importantly, the records of the various interviews undertaken by the children and the parents together with a DVD recording of A’s ABE interview. In particular, a point is made concerning the judge’s assumption that the younger boys only made allegations of physical assault by their father after Parker J had made adverse observations about the mother’s credibility at the May hearing. That assumption was shown to be erroneous with respect to C on disclosure by the police on the eve of the December hearing of a note of the interview with him undertaken by the police on 16th April. Mrs Crowley submits that the judge simply failed to engage with this new material and did not refer to it in the judgment.

 

 

 

  • In this respect Mrs Crowley is correct. At paragraph 63 of her December judgment the judge deals with the issue in this manner:

 

 

“I have thought very hard, notwithstanding the evidence that I have heard about good contact, whether there could have been incidents when the father had taken a belt to the children, whose behaviour was, as I have said, seriously out of control at this time. But as a result of the combination of the timing; the older boy’s assertions; the fact that the children were taken to the police station, as they must have been, in order to make this disclosure; the fact that I had made comments in my judgment only weeks previously about the lack of any assertion by the boys; I have come to the conclusion that I cannot place any reliance on these allegations. Also, the mother’s case about what she knew at the time has been markedly unreliable and inconsistent. She cannot possibly have not known about beatings at the time had they happened.”

 

  • It can be seen that the judge’s understanding of the timing of the boy’s allegations, coming after her adverse comments in the May judgment, is but one of the factors relied upon by the judge. It must also be borne in mind that the interview with the boys at the police station on 16th April, whilst happening prior to Parker J’s observations, took place within 24 hours of DJ Hodges indicating that the presumption would be for direct contact to take place.

 

 

 

  • In her skeleton argument in response to this application, Miss Pamela Scriven QC for the father submits that the premium now placed upon ensuring judicial continuity in these cases is partly justified by the fact that it is beneficial for a judge, over the course of successive hearings, to form a developing view of the evidence as it unfolds. I entirely agree with that submission, and Mrs Crowley does not seriously dispute it. It is, in my view, wholly artificial to regard one part of the series of hearings conducted in front of Parker J to be, in some manner, a free-standing, fact finding hearing in which the judge must ignore any previous views she had developed as a result of evidence heard on prior occasions. In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process. Before the start of the December hearings this judge had heard the mother give oral evidence on three previous occasions. At the December hearing she received the material that had been disclosed by the police and watched A’s ABE interview.

 

 

 

  • In her judgment the judge rejected the allegations that were made by the mother having expressly referred, once again, to the “marked inconsistencies” in the mother’s accounts. With respect to A’s ABE interview the judge observed that his demeanour was “quite remarkably flat” with no sense at all of any emotional engagement. The judge observed that “there was every sense of giving an account which had been repeated, perhaps in his own mind, on many occasions, rather than being any form of spontaneous recall”. That description is not challenged within this appeal and we have not been invited to view the ABE interview ourselves. The judge concluded that the father may very well have been over-rough with A on one particular occasion, but she observed the difficulties in dealing with a child whose behaviour is physically very challenging.

 

 

 

  • The judge reviewed the evidence relating to allegations made by the boys more generally, and, in particular, about being hit by the father with a belt. I have already set out the judge’s conclusion on this point which is at paragraph 63 of her judgment. The reasons given by the judge, save for her misunderstanding as to the timing of the first allegations made by the younger boys, is supported by the evidence to which she refers and the conclusion to which she came was plainly open to her on that evidence.

 

 

 

  • Once it is established, as I consider it is, that the judge was entitled to form a preliminary view of the veracity of the mother’s core case following hearing her oral evidence at the two hearings in May, I consider that the criticisms of the robust case management that the judge undoubtedly deployed in December must fall away.

 

 

The nub of this is really the timing of the allegation that the father had hit the boys with a belt, which came right on the heels of  DJ Hodge telling the mother that direct contact would be in the interests of the children (no allegations of physical abuse were being made by mother at that hearing, but they emerged immediately after). At the fact finding all of the mother’s allegations were rejected, and Parker J reached a decision that the mother’s behaviour had gone beyond a misguided belief that the children were at risk or over-protectiveness and into darker areas.

 

The change of residence is interesting – the boys were expressing the view that they did not want to live with their father. The social worker did not support a move, nor did the Guardian. (note the criticisms below of the Guardian)

 

  • Neither the social worker nor the Children’s Guardian supported an immediate change of residence. In justifying her conclusion in favour of an immediate change of residence, the judge explained her reasons for disagreeing with these two professionals as follows:

 

 

“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.

 

73. The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”

 

  • At paragraphs 74 to 76 the judge then set out her conclusions:

 

 

“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.

75. I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment. Much though I would like to give these boys a Christmas as they want it, or as they believe they want it, it is unsafe for them to spend Christmas Day with their mother and her family. Quite apart from anything else, the mother accepts that the two younger children should spend Christmas with the father and his family. They should be told that that is now the parental agreed plan.

76. I am in no doubt that the boys must remain living with their father until this case can be looked at again. I see no chance of any significant change to divert me from that view. I am not inclined to bring this matter back before the circuit judge in January, when I am away, unless there is some emergency which needs to be dealt with. There does need to be some form of further investigation. I am not at the moment persuaded, particularly because an expert of proper calibre has not been identified, that there needs to be any form of psychological assessment. That simply detracts from the judicial role and, after all, it is not experts who make findings and decisions; it is the Court. I would like to see how things settle down.”

 

 

Point 2 – the Judge meeting with the boys

 

 

  • On the morning of the second day of the December hearing the judge conducted two judicial meetings with the children, firstly with the younger two and secondly with A. Depending on the circumstances of any given case, a judge may see a child for a variety of purposes. Such purposes are, however, likely to fall under one or both of two heads, namely providing an opportunity for the young person to say anything that they wish to say to the judge and, secondly, providing an opportunity for the judge to explain the process being undertaken by the court and to otherwise enhance the young person’s understanding of, and feeling of engagement with, the court proceedings. Judges are encouraged to adhere to the guidelines issued under the authority of the President of the Family Division by the Family Justice Council (Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) [2010] 2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence:

 

 

“It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her”

 

  • It is clear that the meeting with the judge occurred in consequence of the judge’s conclusion that such a meeting was likely to be beneficial, rather than arising out of any request from any of the children. The judge indicated both at the October hearing and on the first day of the December hearing that she considered a meeting with the children was likely to be useful. Mrs Crowley submits, and the transcript supports her, that the meeting arose from a desire on the part of the judge to inform the children of the process and of the orders that might be made, rather than to ascertain their wishes and feelings, which were well recorded. On 19th December the judge told the parties that she perceived a need to be open with the children and to “put her cards on the table” at that stage of the process.

 

 

 

  • The judicial interviews were conducted entirely in accordance with the guidelines. The judge saw the boys in the court room, albeit no doubt in an informal configuration, so that the encounters were recorded and have been transcribed. She was accompanied by her usher, her clerk and the Children’s Guardian. First of all the judge saw the two younger boys together. In addition to hearing the boys give a short account of their wishes and feelings, and their reaction to spending the previous night in the father’s home, the judge used the encounter to describe the possibility that the court might order a change of residence and her expectation that the young people, as would be the case with the adult parties, would co-operate with her decision and abide by it. The boys were plain in stating that they did not want to go to live with their father. During the second interview with A the judge adopted an approach which was commensurate with his age and sought to explain to him that he was not “the man of the family” and that it was the grown ups who had to take responsibility for the arrangement of the affairs of the children.

 

Point 3 – the instruction of an expert

 

 

  • Given the extreme behaviour displayed on occasions by A and given the striking content of the mother’s own handwritten notes reflecting on her own behaviour and emotional stability, the question of whether or not the assistance of a child and adolescent psychiatrist or psychologist inevitably arose for consideration. On the first day of the hearing in December the judge indicated that an expert of a particularly high calibre was required. She indicated that she had a particular expert in mind, but, on the second day of the hearing the judge reported that she had made enquiries which had ascertained that that particular expert was not available to take this case on. The judge therefore concluded that no other expert should be considered and the case would proceed without additional expert involvement.

 

 

 

  • That sequence of events had initially been one of the grounds of appeal   [The Judge went on to grant an application in February 2014 for the instruction of a different expert, so that bit of the appeal falls away]  Although any appeal on the question of whether or not an expert should be instructed therefore falls away, Mrs Crowley criticises the judge’s approach to this matter, on the one hand considering that only an expert of high calibre should be instructed but, on the other, taking it upon herself to assess the situation. She submits that as indicating that the judge went outside the boundary of her judicial role in developing an analysis of the family dynamics which, wrongly it is submitted, supported the decision to make an immediate change of residence.

Even though that point did not have to be determined, since it had fallen away by that stage, the Court of Appeal still say that Parker J was entitled to make that decision and did not need to have expert evidence in order to make her decision that in the interim, the children should move from mother’s care to father’s care.

Although I understand the argument as is so clearly put by Mrs Crowley, I do not consider that the judge’s approach to this matter is open to that criticism. The residence arrangements that are currently in place are plainly interim arrangements pending the further assessment by Dr Asen and the further consideration of the court. Given that the judge was required to make findings of fact in December, and given that those findings were so adverse to the mother, the question naturally arose as to whether the children could be emotionally “safe” if they continued in their mother’s care after those adverse findings had been made. The judge having concluded that the allegations made by the boys were not grounded in reality, it was necessary to consider other explanations to explain the fact that the boys had nevertheless said what they had said to the police. Of the limited range of alternative explanations available, the judge’s conclusion, at that stage of this ongoing process, that the allegations in some manner arose out of a dysfunctional relationship with the mother is not, in my view, seriously open to challenge.

 

Any hearing where the allegations are as strong and vivid as this carries risk for both parents – if the Court finds mother’s allegations proven, then father will have difficulty in establishing any relationship with his children. If the Court finds that mother, as they did here, has made them up and drawn the children into a web of deceit, then a change of residence is a distinct possibility – by that time, the children having taken sides so manifestly are going to find a change of residence very difficult. And of course, worst-case scenario is that a Court eventually concludes that the children are so damaged and the parents so culpable that the children can live with neither parent.  Great care has to be taken over making allegations for tactical reasons, rather than raising  a genuine concern. If the concern is genuine, then it is vital to raise it early on in evidence, rather than filing statements that make no mention of something so serious.

 

 

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The new radicals

Posted on March 12, 2014 by suesspiciousminds

The philosophical issues thrown up by Re M, and Not the Nine O’clock news.

There are some things that my dad had views about that had no influence on my own belief systems. I don’t for example, believe that Freddie Mercury was “straight as a die”, that Roy Orbison was only pretending to be blind, that the moon landings were faked (and that REM know about it and their song “Man on the Moon” is not about Andy Kaufman but is really about exposing the fake moon landings).  I don’t feel the need to stand during the Queen’s Speech, or even to watch it.

But there are some things where I know that my dad’s views and philosophies stayed with me to this day – that you should always tip cabbies and hairdressers well, that West Ham are dear to my heart, that it is better to pretend to play the drums when listening to music than play air guitar, and his sense of antipathy towards Unions and Union bosses.

I’ve never had a Union treat me badly or double-cross me, or let me down, but I do have a hostility towards them, an innate, programmed hostility that comes not from my own experience but the beliefs my dad instilled in me about what a bad lot they were.  Why, even this week, when I heard that Bob Crow had died, my initial gut reaction was the one my dad would have had, and not one bourne out of any personal antipathy towards a man who had no adverse impact on my life at all.

Listening to politicians suddenly speak out about what a great man Bob Crow was reminded me of this classic Not the Nine O’Clock news sketch

 

Anyway, the point of this long rambling intro is that in Re M, the High Court were preparing themselves to tackle the issue of the influence that a father could have on his children, for good or for ill.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/667.html

The father in this case is a Libyan man, with seven children. He came to England and married an English woman and started that family. The marriage ended when the mother began to drift back to her earlier Christian beliefs, the father being Muslim. There were problems about the children being returned from an arranged holiday in Libya and a dispute between the parents as to whether this was an attempt by the father to move the family lock stock and barrel to Libya. There were allegations made by the mother about the way that the father treated her and the children – those allegations are not proven or tested and were to be the subject of a fact finding hearing in private law.

The Local Authority had been asked to undertake an investigation and they reported that the children were fine and happy with mother and they had no concerns.

 

At paragraph 10, under a heading “Recommendations”, the social worker wrote,

 

“The children are happy and content in the care of their mother, having gone through a period of instability since last year. They are attending school and many other activities. The behaviour of [the eldest two sons] has calmed significantly and [the second son] has become very close to his mother. [The mother] is providing a physically and emotionally safe environment for the children.”

The report commented also upon the relationship between the children and their father that had been observed during occasions of contact. It said at paragraph 6.6,

“[The father] was observed during contact with the children. He was very warm and affectionate towards the children. His interaction with the children was age-appropriate during the contact and the children found it a positive experience. However, all children apart from [the eldest son] requested for future contact to be supervised.”

It was therefore something of a surprise to Holman J, when the day before the fact-finding was to begin, he received a communication from the Local Authority that they intended to commence care proceedings.

On further enquiry, it emerged that fresh allegations had been made to the Local Authority, who were greatly concerned about them. The substance of those allegations were that the father was “radicalising the children” and promoting radical fundamentalist thoughts associated with terrorism, that he was not simply promoting and advocating Islam as a faith but insisting to the children that anyone who was not following the Islamic faith was an ‘infidel’

This was something that had not been raised as a specific allegation or that the Court had been asked to deal with at the fact-finding hearing, although there was this reference to it in mother’s statement

“Immediately following my return, both children were extremely hostile and rude to me and used concerning language which includes calling me a ‘fucking bitch’, a ‘Christian witch’, and [the second son] told me that I am evil and going to hell. When I asked the children where they had got these ideas from, they said that their father had told them …

On 22 May 2013 I spoke to [the eldest son] about his behaviour and he told me that he cannot love me because I am going to ‘hell fire’. He was crying and said that I was going to hell because I am not a Muslim. I comforted him and his behaviour gradually improved from this time on. [The second son] however, continued to be extremely angry and volatile. [The eldest two sons] are showing signs of radicalised behaviour and have said that they want to be a jihadist when they grow up since a young age, and that they hate England and Christians …”

The Judge made it plain that no findings had been made against the father and these allegations were both untested and strenuously denied

    1. I stress very strongly and clearly indeed that at the moment all of this material is no more than statements made by, or attributed to, the mother, and no more than allegations insofar as it relates to the father or any members of his family in Libya.

 

  1. The father himself very strongly denies nearly all of the allegations that have been made against him and which were intended to be the subject of the fact finding hearing this week. I understand from his counsel today that he also very strongly denies that he has said, or done, anything to any of the children which might lead any of them to say the things or behave in the ways described by their mother in the passage that I have just read.

 

The Judge felt that it would be unfair to start the finding of fact hearing when father had had no notice or warning of these allegations and that the detail of what was alleged was not available to him, nor had he had the opportunity to respond. The case was therefore adjourned to gather that evidence, let father have the proper chance to respond and for the allegations to be tested. It is, of course, the mother (or the Local Authority) who have to prove these allegations – it isn’t for father to disprove them.

It will be an interesting judgment to read when the finding of fact hearing is concluded – I don’t want to comment particularly on this individual family as the allegations are yet to be tested and no real detail is available for anyone to form any view as to their truth or not – the whole thing might be a  misunderstanding, an exagerration or even outright falsehood.

I do think though that the case raises interesting debates about whether there is a bright line between sharing your beliefs and values – even if those might not be the cultural norms of the UK – and emotional harm to children.  Is this a Hedley J  Re L case, where society ought to tolerate a broad spectrum of behaviour and views and values, or a Supreme Court Re B case where the behaviour of the adults was held to cross the line into significant harm?

The Judge captures this very elegantly

“Radicalising” is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism” or, indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.

 

 

It is very difficult, when you start thinking of concrete situations, to see where that bright line would be.

For example – a man says to his fourteen year old son

1.  Islam is a faith with many followers throughout the world, it is something that I firmly believe in. I also believe that there are substantial elements of Western society that are decadent and not in keeping with my faith and tradition and the world would be a better place if more people followed Islamic traditions.

seems fine to me

Let’s add

2. There are those in the Western world that are threatened by Islam, and are frightened that their time of dominance based on greed and capitalism will come to an end. As a result, they oppress Islam, they stir up fear and hatred of Muslims, they scapegoat us for the ills of the world and start wars against Islamic countries using lies and deceit.

Now let’s add

3. There are Muslims who fight back, who resist this oppression. They risk their lives for what they believe in. They stand up for what is right, and they are honourable men to do so. We cannot fight against the West with tanks and planes because we do not have their resources and might – instead we rely on brave men who sacrifice their life to do what they must to bring the West to realise that what they do to Muslims is wrong. Being a martyr for something you believe in is better than tolerating oppression.

 

[For the avoidance of any doubt, I do not suggest at all that these views are in any way representative of mainstream Islamic thought or belief – it is just laying out a trail of how one might move away from mainstream Islamic thought and justifiable feelings of wanting to share your faith with your children towards the very tiny proportion of radical fundamentalist viewpoints]

Even that third one still seems to me to be an expression of faith and values – it might be edging towards stuff that might make people uncomfortable, but if you live in a free society you don’t just defend the right of people to say things that you agree with – sometimes people need to be free to say unpalatable things, unpopular things.

Almost certainly before you get anywhere near the point where the child is going to start hating the West or wanting to take action, you’ve got many many more steps than that – but how many? How far down that route do you go before what is happening is not an expression of views but emotionally abuse and indoctrination or radicalisation?  But putting your finger on where that point is that crosses the line between expressing your faith and views and saying what you believe and becomes harmful is not easy.

Even if the Judge has a verbatim account of what was said to a child, fixing that the bright line has been crossed might prove to be a difficult task.
 

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