Category Archives: threshold criteria

“Lancashire Hot Pot(ato) “

Posted on February 21, 2013 by suesspiciousminds

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.”

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  – NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

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“Finding” out the hard way

Posted on February 18, 2013 by suesspiciousminds

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

 The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to  “a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”   

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

  1. On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.
  1. On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore “I know he could not have done it.”

  1. The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.
  1. In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

 

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’,  ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

 Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality).  It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened.  As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.  

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C.  And how would C growing up in her care, with that in mind, impact on C?

 

  1. He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”
  1. Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.
  1. Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.
  1. Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

 On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings.  It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

 She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support  

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

 

  1. Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.
  1. The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.
  1. Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.
  1. Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.
  1. Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.
  1. I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

 

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be?  You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding  either…

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“A Judge too far”

Posted on February 4, 2013 by suesspiciousminds

 

 

A quick discussion on the Court of Appeal decision in Re J-L (Children) 2012

 

 

 

The Court of Appeal sat in a very short hearing to determine a case where a Judge, when dealing with a fact-finding hearing in care proceedings, made a particular set of findings that deviated from the schedule of proposed findings drawn up by the Local Authority and found that the children had witnessed inappropriate sexual behaviour whilst in the care of their mother.

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed111465

 

 

 

I blogged about this one prior to the full transcript being up, here:-

 

https://suesspiciousminds.com/2012/12/05/i-still-havent-found-what-im-looking-for-or-going-off-menu/  

 

 

based on the family law week summary that suggested that the Court of Appeal had ruled that it was not open to a Judge to make findings that were not on the menu / schedule of findings placed before him.

 

Reading the full transcript, I don’t think the Court of Appeal go that far at all. There is not, in my view, such a principle established by this case.

 

 In fact, although it is a short one page judgment, I can’t find a single sentence that hints at the Court of Appeal determining whether or not a Judge can go “off-menu”  – it simply didn’t fall to be determined as a result of matters I set out below.   

 

 [What they do say is that on the EVIDENCE before the Court, the particular finding made wasn’t one open to the Judge to find. 

 

It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property

 

[It being fairly pertinent that there was no material or allegation or disclosure before the Court that the children had witnessed this sort of thing. There is nothing unusual about the Court of Appeal saying that a Judge couldn’t make findings on the evidence before them, nothing new to see there.  But wait around, because the next bit is good]

 

 

 

By the time of the hearing, each of the parties had reached a decision that the finding the Judge made in relation to those matters was a step too far, and that it would be appropriate for that particular finding to be struck out. Indeed, the Local Authority had been in liaison with the other parties to try to formulate some wording which would be acceptable to all.

 

The Court of Appeal were rightly pretty irascible about  the need for an Appeal hearing at all, given that all parties were of the view that the findings needed to be adjusted and the offending paragraphs struck out

 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father’s legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.

 

 

 

I think it would be a risk, in any future appeal where some of the parties are seeking to avoid the need for an appeal by reaching a consensus to be the one lone wolf not engaging in that process.   (Of course, it is different if the party has a different view to the attempted consensus and there is a chasm which can’t be bridged, even following attempts, but here, it seems as though father’s team just sat out those discussions)

 

 

The Court of Appeal don’t really address what would actually happen in this situation on the ground.  There’s almost an implication that an appeal hearing isn’t needed if all of the parties could agree a form of wording on the finding in dispute.

Now, imagine that the Judge makes a string of findings, lets say 8 in all, and the parties then write to her after the Judgment and say  “None of us agree with you on finding 7, and we think you should say X”

 

 

There’s a bit of a difference in the parties doing that of their own accord, and the Court of Appeal having approved that. In the latter case, the Judge has been told that finding 7 won’t wash, and needs to be sorted out.

 

In the former, I can think of many Judges who would say “Well, thank you for your kind interest in my judgment, and contribution to it after the event”,  and then in tones similar to Miranda Richardson in Blackadder, add  “Who’s Judge?”

 

[If the Court of Appeal instead mean that the parties in this sort of situation in the future could have lodged their revised wording to finding 7 and the Court of Appeal could have just agreed it without a hearing, that also seems iffy to me.  A Judge wasn’t necessarily wrong, let alone plainly wrong, just because all four advocates think they were, and a determination as to whether they were ought to be for the Appeal Court, not just to rubber stamp an agreeement between the parties as to what the judgment OUGHT to have said. But I am, perhaps, old-fashioned in that regard. ]

 

Who's Queen?

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There’s a small boat made of china, going nowhere on my mantelpiece

Posted on January 8, 2013 by suesspiciousminds

 

Laplace, prediction, and why we might, everywhere we go, always take the weather with us in care proceedings

 

By the start of the nineteenth century, scientists had discovered a great many of the principles of physics and particularly how various forces acted on objects in predictable and mathematical ways.  This led some scientists to hubristically predict that there was nothing new to be found in the world of physics   (obviously not aware that radioactivity, splitting the atom and quantum physics were completely unknown to them at that point).

 

Anyway, once you discover the various mathematical principles about forces and objects and how forces act upon objects, one starts thinking about whether you could predict something with absolute certainty if you had enough information.

 

Being a previously sad geeky sciency Suesspiciousminds Junior, I had certainly wondered in my adolescence whether you could, if you had really fast computers and knew everything, no longer be guessing a toin coss, but knowing how it would end up.  

 

That’s something which has also exercised the minds of a great many gamblers, since Roulette is essentially just an exercise in predictable physics (speed of spin of the table, angle and speed at which the ball is dropped) – predictable, but extremely complex, and if you could actually predict which slot the ball would drop into, with certainty, you would be an extraordinarily rich person.

 

Well, someone else,  Pierre-Simon Laplace took that a stage further, and suggested that with a great enough intellect (computers weren’t really around at that stage, other than Babbage’s mechanical one which was more of a theoretical concept than something you could actually boot up and play Farmville on), you could calculate the entire future of the universe and the movement of every particle.

 

“We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.”

 

This is really the birth of determinism, the idea that you can, given enough information, accurately predict future outcomes, or more broadly, that given a set of conditions, the outcome which emerges from those conditions is the only one which COULD have emerged.  

 

[Sadly, I learned when doing a bit of quick research, that Laplace’s other claim, that Pope Callixtus had once excommunicated a comet, was fallacious. I have a later essay planned on how the law has treated animals and inanimate objects, and that would have fitted perfectly with the excommunication of beetles and the pig who was put on trial for murder]

 

I won’t get any further into whether Laplace’s grand conjecture is true or not (if only in a deeply theoretical sense), and it is still debated – Einstein firmly lined up with Laplace on believing that there were firm mathematical laws and principles underpinning all matter and physics and that it would therefore be possible to predict things with certainly, but that there were just things that were yet unknown to us that prevented such predictions being made. Many others think otherwise, and that there’s an element of randomness, particularly at the quantum level that makes that impossible.

 

Let’s move away from correctly predicting the motion, position and velocity of every particle in the universe and onto a smaller scale, and some predictions which are common to every one of us, and which enter our homes on a daily basis.

 

And that allows me to  yank it back to care proceedings – in one of the dominant cases of the 1990’s, Re H and R 1996, the House of Lords grappled with the issue of what ‘likely’ meant, when considering whether a child was ‘likely to suffer significant harm’  and this is one of the more memorable passages from Lord Nicholls of Birkenhead :-

 

 

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

 

 

And if you know the law, you will grasp that the latter is where we ended up at in terms of likelihood  – it does not mean something that is more likely than not to happen, but a risk that cannot sensibly be ignored.

 

But in a real sense now, I am going to talk about the science of predicting the weather – will it rain on Kinder Scout today or not?

 

As you will know, the field of predicting the weather has moved beyond hanging up pine-cones or (my standby) looking at whether cows are lying down in a field   (a belief I can’t shed, despite knowing how stupid it is, and one which gets me regularly mocked by Ms SuesspiciousMinds)

Meteorology instead uses a combination of :-

 

  1. Gathering lots of information about the current situation
  2. Applying mathematical principles and formula to predict how features in one part of the system will interact with another
  3. Calculating therefore what a particular part of the system is likely to do at a future point

 

 

And thus, is a system that would make Laplace very proud.

 

 

The principles that govern whether we get rain, or snow, or a nice bright sunny day, are pretty uncontroversial. There isn’t a band of quarrelling meteorologists bickering about whether isobars are of any significance at all or whether the warm fronts we see so much of on the television are merely illusory.  So, the principles are all there. The mathematical models for what these set of conditions will do over the next few hours are there (based largely on thermodynamics and fluid dynamics), and have been refined and improved, the collection of information about those conditions has vastly improved over the last thirty years, as has the quality of computers doing the calculations.

 

But what is your first answer, quickly, when I ask

 

“Do you think we can reliably forecast the weather?”

 

 

Making my own little forecast, your instant reaction was no, or that we are hopeless. You may, if you are a fair-minded person, have had a momentary recalibration and decided that we are better at it than we used to be, or even that we are not bad at it now.

 

But let’s go back to Lord Nicholls – it is March, you are about to go up Kinder Scout  and the weather forecast says that it is probably not going to rain. Do you take a coat, or not?

 

Is the risk that the weather forecast will be wrong when it says there won’t be rain, a risk that cannot be sensibly be ignored, if you find yourself up on a mountain without a coat?

 

You may have had nagging at the back of your mind, or the front of your mind if you are a science geek or liked Jeff Goldlum’s character in JurassicPark, the notion of chaos theory at this point. You may even have recalled the image of a butterfly flapping its wings and causing a hurricane on the other side of the world   [incidentally, probably the most misunderstood image in the history of science  – it doesn’t CAUSE the hurricane, it is about how small factors can amplify and make things harder to predict]

 

Essentially, small factors amplify with time, and the way they amplify is hard to predict, so even the very best computer forecasts become more and more unreliable with the passage of time. Forecasts are far more reliable about the next few hours than they are about next week, and break down almost entirely after sixteen days.  In numerical models, extremely small errors in initial values double roughly every five days for variables such as temperature and wind velocity

 

[So every time the newspapers tell you that there are predictions that this is going to be a “barbecue summer”  remember that the accuracy beyond 16 days is all to cock]

 

 

Okay, so predicting the weather, which is based on inanimate objects, which act under the influence of known forces, in known ways, and which the science of meteorology has been refining and checking against known outcomes to improve the prediction models, isn’t all that accurate and is not very accurate at all after 16 days.

 

Now, I will pull us back to law.

 

At the conclusion of a criminal trial, things are simple  – did this person do what they were accused of, and has that been proven. It’s similar with any other sort of legal dispute  – did one person prove that x happened, and what punishment / compensation should the Court give.   The Court doesn’t really have to predict the future – a burglar isn’t convicted of an offence of burglary only if the Court think he will do another burglary next week.

 

 

Care proceedings aren’t like that – whilst we may well spend some time arguing about precisely what happened in the past and the Court may have to decide that if we can’t hit on a form of words which everyone can agree, mostly what we are doing is predicting the future.

 

  • Have the improvements seen in the mother’s parenting at a mother and baby placement, or in contact, mean that she can now safely care for the child, or is she going to slip back into her old ways once she stops being watched all the time?
  • Is this father, who has been using heroin for 6 years but has been clean for 4 months, going to remain clean, or will he slip back? (What if he was clean for 6 months, but had one lapse?)
  • Will the mother, now that she has seen how risky an individual her new boyfriend is, stay away from him when the proceedings are over, or will he be back in her life and have the chance to hurt the child?
  • Will the parents who broke their four year old’s leg by handling him far too roughly, ever do anything like that again?

 

 

I have probably sledge-hammered this point, rather than making it in a subtle way, but if top scientists with huge computers can’t predict whether it will rain on Kinder Scout tomorrow, how can we possibly predict with certainty whether the mother will succumb to text messages from the dodgy boyfriend and keep seeing him in secret?

 

Professor Monroe touched on this in her first report –  there was for a long time a body of thought in social work, or social work management, that we could avoid the twin pitfalls of social work    – being too soft and letting children get hurt, or being too hard and breaking up families who could have stayed together (Baby P at one end, Cleveland and Orkney at the other) by having more information, more accurate models, and getting the decisions just right.

 

1.43

Professionals can make two types of error: they can over-estimate or underestimate the dangers facing a child or young person. Error cannot be eradicated and this review is conscious of how trying to reduce one type of error increases the other.

1.44

The public tend to learn of cases of abuse after a child or young person has died or suffered serious harm and then, with the benefit of hindsight, make judgments on how it was easy to see that the child or young person was in danger and would have been safer if removed. This is of course not the way the issue looks for the professionals who only have foresight. Removing a child or young person can protect them from immediate risk of significant harm, but is understandably traumatic for them. Maltreated children or young people who come into care often benefit in the long term,  but although the outcomes achieved by looked after children have improved, in too many cases, the potential of the care system to compensate for early harm is unrealised for reasons which are well documented.

 

Our society rightly values the birth family as the primary source of care for children and young people and disrupting that bond is seen as a serious step to take, requiring close scrutiny before the courts will grant the legal authority to do so.

The birth family equally presents a mixture of benefits and dangers. A good assessment involves weighing up these relative risks and benefits and deciding which option, on balance, carries the highest probability of the best outcomes for the child. Neither option carries zero risk of harm.

1.45

In assessing the value of leaving the child in the same situation, professionals have to consider a balance of possibilities: to estimate how harmful it will be, to consider whether it might escalate and cause very serious harm or death. They also need to consider whether resources are locally available so that families can be helped to provide safer care and estimate how effective such interventions are likely to be.

1.46

All of these areas of uncertainty make decisions about children and young people’s safety and well-being very challenging. A well thought out decision may conclude that the probability of significant harm in the birth family is low. However, low probability events happen and sometimes the child left in the birth family is a victim of extreme violence and dies or is seriously injured is therefore very important. Public understanding that the death of a child may follow even when the quality of professional practice is high is therefore very important.

 

 

She says, and as you can see, I agree, that you just can’t hope to get every case right, when you predict the future, your predictions have limitations to their accuracy.  If you try to move down the safety first side of the scale, you will take children away unnecessarily. If you try to move down the keeping families together side of the scale, some children will be badly harmed at home.  The aim to just make the right decisions at the right time, in all case is simply never going to happen.

If the weather forecasters can’t get it right, neither can we.

You are dealing with people, with all their uncertainties, capriciousness and emotions, and you can’t predict exactly what they will do. The cases where you get it ‘just right’ may well end up being few and far between, and may well be more by luck than judgment.

 

A mother who is utterly resolute about remaining separate from her dangerous  ex-boyfriend, who understands what is at stake and how bad he is from her, may on any given day fluctuate about just how resolute she is. Maybe someone handsome smiled at her at a bus stop and she feels good about herself when he sends the text message and she deletes it without reading it. Maybe just before the text message came in, she caught sight of herself in a mirror and felt fat and unloveable. It is utterly impossible to predict that.  It seems easier to predict that a mother that tried to separate from ex boyfriend six times and always went back to him, and was caught out two weeks ago, probably won’t stick to her claims that it is all over and she will never see him again. But we can’t be SURE, we can only predict whether the risk is one that cannot be sensibly ignored.

 

 

None of that means that we simply give up, and either leave all children at home with their parents, or take away every child where there is a sniff of danger, but we do have to be honest with ourselves, and honest with society as a whole.

 

 

And we have to constantly test where we find ourselves on the scale of child rescue and family preservation – are we lurching too far down one end or another?  Are we risk averse, fearful of a Baby P headline and ignoring that those actions break up a family which could have stayed together, or running with a rule of optimism that small changes mean a good future prognosis and not seeing the full picture?

 

We are attempting to predict what human beings, with human emotions, will do in the future – not just in the next few days, or 16 days, but over the course of their children’s childhood.  And the very sort of parents that we attempt to do that with tend,  not always, but more often than not, to be emotionally fragile, damaged people who are chaotic and unpredictable in their actions.

 

 

 

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So tired, tired of waiting, tired of waiting for you

Posted on October 29, 2012 by suesspiciousminds

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

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I’ve got (section) thirty seven problems, but a ***** ain’t one

Posted on August 31, 2012 by suesspiciousminds

 A discussion about section 37 of the Children Act 1989 and the pending appeal on  Re K (Children) [2012] EWCA Civ 1169

 

 

The case is discussed over at Family Lore, here

 

http://www.familylore.co.uk/2012/08/re-k-children-how-not-to-conduct.html

 

 

and Family Lore’s focus is on how the parents nearly messed up their very valid argument by the manner in which they presented the case.  That is a very good analysis and discussion, and I recommend checking it out.

 

I come at this from a slightly different tack, which is the novel and interesting point of law that Mr and Mrs B included in their grounds for appeal, namely that a series of ICOs were made, without an application for such being made by the Local Authority, the Court effectively making them of their own motion by using the powers under s37 and s38(1)(b) to make ICOs of the Court’s own motion.

 

 

The judgment granting permission to appeal can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1169.html

 

 

The bare facts are these.  Mrs B is the mother of two children, who the Court named “Tok” and “Tun”   (which are the most unusual pseudonyms for children I have seen in a judgment).  Tok was 15, Tun 12 ½.    The father of the child is Dr K, mum and dad are estranged. Mum remarried, and Mr B is the stepfather.

 

There have been extensive private law proceedings over about six years and at the time in question, the children had been living with Mr and Mrs B.

 

On 10th December 2010, the Court made a section 37 direction, inviting the Local Authority to prepare a report on the circumstances of the case and specifically to report as to whether it would be appropriate to initiate care proceedings (and if not, to say why not). Alongside that, the Court made an Interim Care Order.

 

This is the only situation in which a Court can make an Interim Care Order without a formal application and arises from

 

Section 38 (1) of the Children Act 1989 

 

Where –

 

(a)   in any proceedings on an application for a Care Order or Supervision Order, the proceedings are adjourned; or

(b)   the Court gives a direction under section 37(1),

 

the Court may make an Interim Care Order or an Interim Supervision Order with respect to the child concerned.

 

The purpose of that power is to enable a Court faced with private law proceedings where it appears that the child is suffering or at risk of suffering significant harm if an ICO or ISO is not made, to make one, which would be for a period of 8 weeks, which coincidentally or by design, is the timescale for the Local Authority to supply their section 37 report.

 

Mr and Mrs B refused to work with the Local Authority, and as a result, five days after the making of the ICO, the children were removed from their care.

 

Now, remember, that in making the ICO, there was no formal application before the Court, and therefore the Local Authority had not laid out to the parents the threshold criteria  (or the facts that led to concerns about significant harm)  and nor had the Court held a hearing to determine whether the legal test for removal of the children under an ICO was made out.  (It being settled law now that sanctioning separation at interim stage is more than just deciding that an Interim Care Order is the right order)

 

By 28th January 2011, the LA had determined that matters had cooled and that the children could be returned to Mr and Mrs B, and did not make any formal application for a Care or Supervision Order.

 

The Judge considered otherwise, and made another section 37 direction for the LA to report, making alongside it a further Interim Care Order, pursuant to section 38 (1) (b).  He also said that alongside that ICO, he did not sanction the children being returned to Mr and Mrs B whilst it was in force.

 

Now, this will be the nub of the appeal decision for me. I am aware that there are two schools of thought on the powers of s38(1) (b).   One (my own) is that it goes far enough to allow a Court to make an ICO or ISO whilst awaiting the Local Authority’s report and decision as to whether to issue proceedings, “to hold the ring” as it were. The other  (and one that I have seen in various County Court case and a couple of High Court cases) is that faced with a Local Authority who don’t share the Judge’s view that a section 31 application for a Care Order should be made, the Court can simply make a second and subsequent directions for further reports and further ICOs until either matters resolve or the LA see sense and issue.

 

The LA, in this particular case, changed their view to reflect the Judge’s strong views, and subsequently made an application for an ICO. But the children remained out of their care for at least some period, on the basis of a second ICO having been made, without an application, using a second s38(1) (b) order, rather than the traditional s38(1) (a) ICO on application.

 

 

 

 

The precise wording of the Act, as set out earlier, says that the Court can make an ICO alongside a direction for a section 37 report, and does not say that this can only be once, or can only be done if the LA have not reported.

 

But the obvious risk here is that rather than the application for a Care Order being prosecuted by the Local Authority, opposed by the parents, and determined by the Court, the Court is actually driving the application that it is in the position of determining.

 

It seems to me that whilst the first ICO is justifiable  (although I think it would be worth remembering that s38(2) is clear that the order can’t be made unless there are reasonable grounds to believe the threshold criteria is made out, and the Court ought to, if making an order, give a judgment as to why that is the case and why in the circumstances of the welfare checklist making an ICO is better for the child than making no order)   making subsequent ones put the Court in a dual position of seeking an ICO whilst also being the arbiter of whether one should be made.

 

I also suspect that at the appeal hearing, the Court of Appeal may be troubled by the judicial indication that when making the second ICO (that was, remember, not sought by the Local Authority) the Judge informed the Local Authority that he did not sanction them returning the children to Mr and Mrs B during that order.  That seems to me, to be a step too far.  A Court might indicate that the risks before the Court were high and that the current circumstances suggested that managing the risks with the children with Mr and Mrs B would be very difficult to achieve, but the Court has fettered here the Local Authority power to do what their stated intention was, which was to rehabilitate the children to Mr and Mrs B.

 

 

This is the basis on which the Court of Appeal granted permission for the appeal to be heard in full, although the time for appealing the ICOs was clearly long gone  (as usual, my own underlining):-

 

  1. Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:

a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is “really no doubt at all” that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B’s bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.

b) The judge’s stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B’s co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority’s sustained assertion that there were no grounds for a further interim care order, the judge’s decision to make two subsequent fresh s 37 directions, thereby maintaining the court’s jurisdiction to make interim care orders, must be open to question.

c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:

“…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S’s first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned.”

The judge then goes on to record that “all that has fallen away” following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge’s conclusion that the previous social work reports were favourable to Mr and Mrs B and were “comprehensive and thorough”, the court’s grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says “I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis….”

 

 

In the permission hearing, the Court of Appeal didn’t make comment as to the other two issues I have touched on here – that the making of the first ICO allowed the children to be removed without the Court ever having determined that the risks involved were proportionate to the children being removed from home at an interlocutory stage, and whether when making the second ICO the Judge went further than he was entitled to by telling the Local Authority that the Court did not sanction the children being returned by the LA to Mr and Mrs B during the course of that order.

 

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You never know when it might just… Buckaroo!

Posted on August 20, 2012 by suesspiciousminds

 

A discussion of whether too much weight is being put on the back of North Yorkshire County Council v B 2007, and whether there is such a thing as a ‘ruling out’ hearing at interlocutory stage

 

 

 

This is a scenario that’s not that uncommon in care proceedings – all of the evidence on the parents has been collected and the professionals have taken a view on it, that view not necessarily being shared by the parents. But the case isn’t ready for final hearing and is being adjourned for 3-4 months, usually in order to test a placement with a relative.

 

[Incidentally, could we all stop using the phrase ‘a relative has come out the woodwork’ in such situations? It’s icky, and perjorative. And is a pet hate of mine. They are grandparents, or aunts, or friends, not woodlice]

 

Can the Court in those circumstances have a hearing which disposes of the parents case at interlocutory stage?

 

There’s a school of thought that you can, arising from the High Court decision in North Yorkshire County Council v B 2007   [2008 1 FLR 1645]

That case certainly provides some authority for the suggestion that the Court can deal with the parents case before the case is ready for final hearing. And let’s be fair, the cases I do are all in Courts which are bound by High Court authorities.

 

But, to borrow medical sceptic Ben Goldacre’s phrase  “I think you’ll find it’s a little bit more complicated than that”

 

What follows, like everything on my blog is my personal opinion, and not representative of anything more. But perhaps even more so than usual, because I’m never going to be in a position where my personal opinion on say Re X  (it’s a very high threshold to cross to get an EPO these days) is in conflict with the law, since that’s exactly what Re X says.

 

But my interpretation of how far you can push North Yorkshire is not decided law, and thus I might one day have to present a case where my personal views on it are set aside. Hence the lawerly caveats. Sorry.

Let’s look at the facts of North Yorkshire. 

The case was listed for an eleven day final hearing, and just before the hearing, it became apparent that the final assessment on the family carers who had slithered under the doorframe  [see how icky it is when you take the usual metaphor and slightly reword it? Stop saying ‘come out of the woodwork]  would not be ready.

 

The Judge was faced with the prospect of abandoning a hearing where eleven days had been set aside, witnesses warned etc and finding all of that time again in the future, or trying to see if something useful could be done with that hearing time. The Local Authority suggested that the Court could use the eleven days to hear mother’s case (that the children should be returned) and then have a shorter disposal hearing on appropriate order and contact at a later stage.

 

North Yorkshire sets out the Honourable Mrs Justice Black’s(as she then was) decision on the preliminary issue of whether a Court could actually conduct a hearing determining a parents case before the final hearing.

 

We do not know, as the full case was not reported, what the decision at the end of the eleven days was, but the preliminary issue was decided, and Black J concluded that it was open to the Court to conduct such a hearing.

 

 

Now, here are some important things from that judgment :-

 

  1. Mother was making a positive case (not just disputing the LA case)
  2. Mother was asserting that she was making progress and could evidence that. She was on a methadone reduction programme. She accepted she was not in an immediate position to have the child returned, but felt that was achievable in the foreseeable future
  3. The family members, who were being put forward, were not certain to have a positive full assessment – the prospects were there, but the initial viability had been negative and the placement revisited because the father received a custodial sentence removing his risk from the scene.
  4. The judgment is only permissive  – it says that the Court, could embark upon a hearing to determine the merits of mother’s case. It does not say that a Court HAS to do this in similar circumstances, nor does it set out any criteria for when it would be appropriate to do so, or when it would be wrong.

 

 

But this is the paragraph that causes me disquiet if this authority is being used as authority for a principle that parents can be ‘Ruled Out’ at interlocutory stage.

 

17. It cannot be argued, in my judgment, that decisions in care proceedings only crystallise when the Court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata or issue estoppel, in its traditional form has a limited place in family proceedings.

 

 

It is the underlined passage that causes me to believe, on a personal level, that using North Yorkshire as authority for a principle that the Court can finally dispose of a parents case at interlocutory stage simply puts more weight on its back than the case can bear.  Buckaroo!   (also Yeeee-haaa)

 

If one thinks for a moment about what one would mean by “Ruling Out”, it must surely include this :-

 

  1. That the children, if they are old enough to understand, can be told that the Court has decided that they will not go home to mummy or daddy.

 

  1. And inevitably, if they are to be told that, that mummy and daddy can’t come back to the final hearing in 3 months time and argue for the return of the children.

 

  1. And to an extent, that they are PREVENTED from doing so, as a result of the earlier decision and judgment of the Court.

 

 

[and by extension, that if the parent issued a Residence Order application shortly before the final hearing  – for which, of course, they don’t need leave as a result of s10(4), the Court would dismiss this without hearing any submissions or evidence. And I suggest that as soon as you put it in those terms, you can see that there’s no possibility of a Court doing that, no matter what judgments have gone beforehand]

 

If you don’t have those 3 things, then you have not had a Ruling Out of the parents.  What you may have had, which is legitimate, is a judicial determination of the case against the parents and the counter case, at a particular snapshot in time and a judgment as to whether, all things being equal the parents are likely to be able to overcome any deficiencies found in that judgment within the children’s timescales. 

 

But saying that the parents can produce no evidence at the later final hearing to counter that judgment – if they make sweeping changes or accelerated progress the Court will not hear them on the issue, is not only NOT expressly sanctioned by North Yorkshire, the case says quite the reverse. [IMHO]

 

I am also troubled by the concept of Ruling Out, and how it fits with the House of Lords decision in Kent County Council v G 2006

 

Thus the court’s role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order.   (paragraph 48)

 

If it is not the Court’s role to decide whether the child should return to parents, but rather, whether to grant the application made by the State  (and that must be right, because that’s where the burden of proof lies) then the Court cannot finally determine that application until final hearing/agreed final IRH.

 

 

Of course, where there is a dispute over threshold, or an interim care plan (the parent opposing the move, or level of contact) or dispute as to the expert evidence, or what the timescales for change would be, then there is some value in incorporating within that, the North Yorkshire position,  of the Court weighing up the merits of returning the child to the parent at that particular time and perhaps indicating what sort of changes would be required for the door to be opened for parents at the final hearing.   I think any and all of that is legitimate and permissable, so long as the Court is not tempted to take that additional step of ruling that the parents case is finally disposed of.

 

But a stand-alone Ruling Out hearing, is a concept that worries me. If one looks at an analogous situation of whether a separate finding of fact hearing is required,

 

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

I am not sure that the merits of what can be achieved at what I would call a North Yorkshire hearing rather than the shorthand (which I suggest is misleading) of a Ruling Out hearing, can justify it as a stand-alone hearing where no other important issues are being resolved.

 

Rant over.

 

Now, your worships, I invite you to list this matter for a “ruling out” hearing, in line with the High Court authority of North Yorkshire…

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“I need two volunteers – you, and you” – how ‘voluntary’ is voluntary accommodation?

Posted on July 31, 2012 by suesspiciousminds

A consideration of the High Court decision in CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)  and whether it is now legitimate for a social worker to ask a mother to agree voluntary accommodation of a baby.  (answer, probably not)

 

I think it would not be unreasonable to describe this case as being to section 20 what Re X was to EPOs.

 

The case can be found here :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

 

Much of the case relates to a factual determination of applications for Care and Placement Orders, but the important bit of wider import can be found in the passages dealing with the mother’s case that her human rights had been breached by the Local Authority effectively pressuring her into agreeing section 20 voluntary accommodation of her child.

 

As far as I am aware, this is the first case dealing with the vexed issue of whether someone has genuinely agreed section 20 accommodation, and whether when the LA effectively pitch up and say “You’ve got to agree to accommodate” there is actually any element of choice involved.

23. Substantial discussions took place on the first day of the hearing (and had of course been in train for some time) which resulted in the local authority conceding the mother’s claim under Section 7 of the 1998 Act. The substance is recorded in the recitals to the order but in effect acknowledge two matters: first, that a Section 20 consent should not have been sought on 1st February 2012; and secondly, that such a removal was not a proportionate response to the risks that then existed. In the event the local authority accepts breaches of the Article 8 rights of both mother and child. The Order with its recitals is annexed to and should be read in conjunction with this judgment

24. The mother, in discussion about damages, asked that they be applied to the costs of her receiving the therapeutic input that has long been advised. The parties have agreed the payment of damages and other provisions which all accept amount to ‘just satisfaction’ of both these claims. It is important to stress that nothing in the subsequent discussion of Section 20 agreements or indeed anything else in this judgment is intended to impugn (nor should it be so read) the propriety of that resolution of the Human Rights claim to which indeed the court (since a minor is a party) specifically gives its approval.

 

So, that’s already quite a big deal – the Court (and the parties) accepting that there would be circumstances in which the LA seeking a section 20 agreement and accommodating the child as a result would be a breach of the mother’s article 8 rights and compensation of some kind is payable.

[Going back to my overarching theme of the law of unintended consequences, I hope HMCS are aware of the deluge of Emergency Protection Order applications that might flow from this sort of decision, as these s20 arrangements are often a stopgap or bridge to get into Court for an ICO hearing, which is now seemingly no longer an option]

It is important to note that there were genuine doubts about the mother’s capacity to agree to section 20 accommodation, as a result of her significant learning difficulties. At the time that the agreement was sought, the mother was also being asked about consenting to medical treatment (for herself, which would be life-saving) and to pain relief including morphine (for herself).

There must obviously have been some reservations about whether the mother was in a position to give valid agreement to accommodate the child under s20 of the Children Act 1989, but the Court go beyond that, and into a discussion of whether a Local Authority can properly invite a parent to give s20 consent if the circumstances are not such that a Court would authorise separation, before concluding that they cannot.

Obviously, that’s quite a big deal, and is something fresh in law. A parent can still ask for s20 accommodation, for whatever reason, but if a Local Authority is asking a parent to agree to it, they run the risk of a human rights financial claim if they did not, at that time, have the sort of evidence that would persuade a Court to sanction removal/separation.

  Prior to this case, as a matter of strict law, the Local Authority did not need to even have reasonable grounds to believe that the threshold criteria are made out, let alone that there was a reasonable prospect of persuading a Court to sanction separation, in order to ASK a parent to agree to s20 accommodation.

I think that there are plenty of cases – the obvious type being a mother who has previously had four or five children removed, but where the concerns are neglect-based rather than a risk of physical harm, where obtaining an EPO would be difficult and usually the first question asked by the LA lawyer of the social worker is ‘is mum willing to agree to s20 accommodation’ – it seems to me that asking that question now carries with it a degree of risk.

 

(The emboldening of key passages is author’s own)

 

27. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.

28. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.

29. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.

30. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers of the authority honestly believed that there were such reasonable grounds. In those circumstances a removal could be lawfully effected in one of four ways under the 1989 Act: by agreement under Section 20, by emergency protection order under Section 44, by the police under Section 46 or under an interim care order pursuant to Section 38. This range of options was considered by the Court of Appeal in A – v – East Sussex C.C. and Another [2010] 2FLR 1596. That case was not concerned with a removal at birth but it does stress the need for minimum intervention and the need to work in partnership with parents.

31. There is reasonably clear authority in respect of the compulsive powers under the Act. It is clear that court orders are to be preferred to administrative action and so Section 44 is accorded primacy over Section 46 – see Langley -v- Liverpool C.C. and Another [2006] 1WLR 375 especially per Dyson LJ at paragraphs 35-40. The regime and criteria for the use of Section 44 is fully set out in ‘X’ Council -v- B [2005] 1FLR 341 and X (Emergency Protection Orders) [2006] 2FLR 701 both approved by the Court of Appeal in A (Supra). The Court of Appeal have repeatedly returned to the subject of removal under an interim care order; for example in Re G (Interim Care Order) [2011] 2FLR 955 the authorities are reviewed and the conclusion reached that the court must consider whether the child’s safety requires removal and whether removal is proportionate in the light of the risk of leaving the child where she was.

32. On the facts of this case, it is most unlikely that any order would have been granted on 1st February. In saying that, it is of course accepted that had either the hospital required the discharge of the child or had the mother tried to procure it, an order would no doubt have been made. As it was, the mother was unable to leave and the hospital were not requiring discharge and it is probable that they would not have done so at least until the mother was fit for discharge.

33. In those circumstances the child was in a place of safety in hospital. All parties accept that in consequence the police would have had no power to remove under Section 46 and no order would have been granted under Section 44. Moreover, given the pre-birth plan and the mother’s co-operation in hospital, it is hard to see how immediate removal could have been justified let alone actually authorised under an interim care order.

34. Although many local authorities have policies and internal guidance in place in respect of post birth removals, the researches of very experienced leading counsel have not uncovered specific guidance in respect of the use of Section 20. There is none in publicly available guidance nor in any reported decision of the court. Since this removal, which would not have been sanctioned by a court, was in fact effected by consent, it is perhaps not surprising that the court is being asked to consider the proper ambit of Section 20 in this specific context.

35. It is necessary to state one obvious point which does not arise in this case but which, if not stated, will at least be thought by those inherently suspicious of local authority power: namely that it can never be permissible to seek agreement to do that which would not be authorised by order soley because it is known, believed or even suspected that no such authorisation would be given and in order to circumvent that position. That would breach all requirements of good faith and of fairness.

36. As I have already said, however, there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation. Three obvious examples occur: first, where the mother’s intention always has been and remains to have the child placed for adoption; secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce); and thirdly, where a parent whether by reason of supervening physical health or personal circumstance positively seeks accommodation of the child by social services. There will of course be others and the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority’s powers of response under Section 20(4) must be respected.

37. However, and whatever the context, Section 20 agreements are not valid unless the parent giving consent has capacity so to do. It is important to note that by Section 1(2) of the 2005 Act a person is to be presumed to have capacity unless it is established that he lacks it. Moreover, the effect of Section 1(4) is to prevent inferences of incapacity from the making of unwise decisions. Incapacity must be due on a “…impairment of, or disturbance in the functioning of the mind or brain” – Section 2(1). Capacity is issue and situation specific. It follows that not only may a person have capacity to make one decision but not another but also may have capacity at one time to make the very decision in respect of which he lacks capacity at another.

38. That can be seen in the context of this case. The fact that the mother could make decisions about surgery and pain relief does not indicate that she could make decisions about the removal of her child. Again the fact that before the birth or sometime after the birth she could make decisions about removal does not mean she could on the day of birth. This latter factor (the impact of the birth itself) is the basis on which Parliament enacted for example Section 52(3) of the 2002 Act in respect of adoption and Section 54(7) of the Human Fertilisation Act 2008 in respect of surrogacy.

39. Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the 2005 Act. Assistance is, however, to be found in Section 3 of the Act which provides by subsection (1) that a person is unable to make a decision if he is unable – a) to understand the information relevant to the decision, b) to retain that information, c) to use or weigh that information as part of the process of making the decision, or d) to communicate his decision… 4) The information relevant to a decision includes information about the reasonably foreseeable consequence of – a) deciding one way or the other, or b) failing to make the decision.

40. Applying that to the facts of the case, the social worker was the person finally to decide capacity and she had the views of the midwives. The key judgments to be made were probably the mother’s ability to use or weigh information surrounding removal and whether she understood that, if she refused, the child would stay in hospital with her. The first of those illustrates why a decision to agree to life-sustaining surgery is wholly different to a decision to consent to removal of the child. It is also clear that her attention was not called to the second matter at all.

 

A reading of paragraph 36 suggests (and there may be other interpretations) that separating a baby from a parent shortly after birth by way of section 20 ought to be a decision driven by the parent (that they genuinely want the child to be accommodated), and not the Local Authority seeking to cajole, influence, persuade (or if you’re cynical) browbeat, the parent into it.

 

And by implication, that such a separation, if the parent is not actively driving it, ought not to be done by s20, but instead by a decision of the Court.

One might think, very fairly, that this is right and proper, and that a parent ought not to be separated from their child because they are weak-willed or haven’t twigged that they have the right to say no when being pushed towards agreeing s20 accommodation by a social worker.

I find it a little hard to disagree with that, to be honest, but it is worth noting that this is quite a departure from where the law was prior to this decision.

Previously, it was incumbent on the parent to not say ‘yes’ to the accommodation being proposed, and for the LA to either issue or allow the child to remain with the parent. NOW, it will be incumbent on the LA to issue if they want separation and to tread extraordinarily carefully in any conversation about s20 accommodation for a baby.

It seems to me, from reading this judgment, that it might be lawful for a social worker to ask (with a huge amount of care, to explain what it means and what the possible consequences are and that the parent can say no) “do you want to voluntary accommodate your child?”  but NOT  anything like “I think it would be a good idea for your child to stay in foster care, do you agree?”

 

(I suspect that to get the wording bullet-proof on this, you’ll need something like the Miranda waiver so beloved of American cop shows… and that it will be so cumbersome that most social workers will just decide not to ask the question)

I think that this passage in particular, will be vital reading for social workers, local authority lawyers, out of hours workers, and those who might be representing parents either in the hours after the baby is born, or when a case pitches up to Court where the parents ‘agreed’ separation.

46. The following can perhaps be offered as the more important aspects –

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20 so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed: a) Does the parent fully understand the consequences of giving such a consent? b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent? c) Is the parent in possession of all the facts and issues material to the giving of consent?

vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask: a) what is the current physical and psychological state of the parent? b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends? c) Is it necessary for the safety of the child for her to be removed at this time? d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

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Forensic ferrets (or “Standing in the way of (beyond parental) control”)

Posted on July 30, 2012 by suesspiciousminds

Standing in the way of  (beyond parental) control 

A discussion of the little-used limb of the threshold criteria, and the interesting and deeply sad case of  Re K (A Child :Post Adoption Breakdown) 2012.   Plus, a judicial determination that Judges are not ferrets.  (I see how, with the ermine, folk might get confused)

The case can be found here (how I love Baiili)  :-

http://www.bailii.org/ew/cases/EWHC/Fam/2012/B9.html 

I have to say, in what’s coming up to eighteen years of care law  (my God, some of the babies I dealt with at the start of my career may now, hopefully, be going to university, and almost certainly will be legitimately buying alcohol)  I have only used the ‘beyond parental control’ limb twice; both times in relation to cases involving adoption breakdowns.

The attractiveness of it is that one does not necessarily need to apportion blame or find that it is poor or unreasonable parenting that has led to the significant harm; and it is for that reason that when it crops up, it tends to be in cases where a deeply damaged child is losing their second family. 

In this case, the Local Authority and the adoptive parents were at loggerheads about who was to blame for “Katie’s” parlous state. Without a doubt, the adoptive placement had broken down, and the relationship between “Katie” and her parents was very fraught.

This was an exchange of messages after Katie had been out of the home for a year

  1.  ‘Katie this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone.

You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented…

 

You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person.

 

We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’

 

  1. Katie’s response was robust. She replied,

‘you are NOT my mum and dad for starters!…you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’

[I pause here to say, that in the light of this sort of stuff, it is astonishing that the LA had such hostility towards the adoptive parents, and one wonders how much of the reasoning for that just didn’t come through in the judgment. The tone might not be perfect, but it’s far from awful or provocative]

Katie was diagnosed as having a reactive attachment disorder, and the Judge was deeply sympathetic to the suggestion that the efforts the parents made, which would have been kind parenting for another child simply did not work with Katie. At the same time, the Judge recognised that this was not in any sense Katie’s fault, but a symptom of her reactive attachment disorder.

[I know, you’re saying “get to the ferrets, I want to know about the ferrets”  – be patient. Your ferret-wishes will be granted]

  1. Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept Katie unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that,

‘the parents need to examine to what extent their well intentioned efforts to help Katie, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through Katie’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with Katie. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’

  1. Parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and Katie got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry…

48. Families who adopt children like Katie are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’

And that was really the crux of the problem. Everyone was agreed that a Care Order had to be made, but in order to make a Care Order, there had to be threshold. 

One would think, as an outsider, that the ‘beyond parental control’ was made for that sort of situation, and one might think that the entireity of this ligitation could have been avoided had a really bland threshold  (channelling those really bland ‘unreasonable behaviour’ petitions that are written by those rare divorce lawyers who are kindly and get the job done without fuss) been prepared.

Perhaps  “Katie has suffered significant harm as a result of absconding from her placement and being unhappy there, this harm has arisen from her being beyond parental control, which is caused by her reactive attachment disorder and not due to any conscious desire to cause harm on the part of the carers, or to cause trouble on the part of Katie. It is just very sad and unfortunate that this placement, which was intended to make everyone happy, has instead made them miserable”

Anyway, that’s not what happened.  The LA threshold document contained 39 allegations, some of which were deeply contentious, and the Court ended up trapped in a battle that ran thus :-

 The LA say that Katie is beyond parental control and that’s the fault of the adopters.

The adopters say Katie is beyond parental control and that’s not their fault.

Katie says she has been significantly harmed, but it’s not her fault.

(I again, go back to the honourable and worthy practice of being bland and inoffensive if it gets the job done)

The Court was not terribly helped by the expert on this particular issue (not because he was being unhelpful, but because he was speaking the truth. The legal niceties here were contributing to screwing this poor child up) :-

  1. Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when Katie conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.
  1. Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for Katie, Dr Richer’s opinion is that if the court makes a finding that Katie is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that,

’34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or Katie was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to Katie in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on Katie is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.

  1. In Dr Richer’s opinion, Katie does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if Katie is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

So, broadly, the Court had to grapple with, and find a resolution to, the question “Can a child suffer significant harm as a result of being beyond parental control without it being anyone’s fault?”

The answer, is “Yes”   and the Court sets out some excellent reasoning as to how it reached that answer.

  1. ‘the child’s being beyond parental control’
  1. That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.
  1. The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said.

‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense. It must be read together with the opening words of subs (2)(b) as follows: “…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.” The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection.

Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’

  1. The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18 March 1997 (unreported). Butler-Sloss LJ says,

‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’

  1. The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:

‘3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

And this was how the judge dealt with threshold  (note the coruscation of the way the LA had chosen to put the case. I can actually feel in my shoulder blades how counsel for the LA must have felt whilst the Judge read all this out)

  1. These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.
  1. I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.
  1. The parents concede that at the relevant date Katie was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that Katie is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to Katie being beyond parental control or to the reactive attachment disorder from which she suffers.
  1. It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that Katie is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.
  1. This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.
  1. I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since Katie’s arrival at Greendale, I am not reassured.
  1. If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since Katie has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on Katie. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?
  1. The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to Katie being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.
  1. Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting Katie. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that Katie has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused Katie distress. Miss McGrath challenged the mother that some of her responses to Katie had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to Katie should not be looked at in isolation. They have to be looked at in the context of the fact that Katie suffers from reactive attachment disorder of childhood.
  1. Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of Katie’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that Katie is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by Katie’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for Katie’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with

’31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like Katie. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel…’

I accept Dr Richer’s evidence.

  1. Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that Katie is beyond parental control. They also justify a finding that Katie was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Forensic ferrets

I adore how the polite exasperation pours through these sentences. One can almost feel the Judge reaching for a bottle of Milk of Magnesia and being able to attribute this particular ulcer to this particular issue…

  1. Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.
  1. The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.
  1. In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.
  1. This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.

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