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The Tooth, The Whole Tooth and Nothing But the Tooth

Posted on November 29, 2024 by suesspiciousminds

Well, it is a delight to be able to use a joke in the title that I first read in the 1980 Beano annual, I have no shame.

When you see in the Family Court bailii section a case headed General Dental Council v KK & Anor [2024] EWHC 3053 (Fam) (25 November 2024)


http://www.bailii.org/ew/cases/EWHC/Fam/2024/3053.html

You immediately think, either that’s been misfiled or it is going to be interesting.

It relates to findings made in the family Court about a father who happened to also be a dentist by profession. The findings included :-

In summary, these concerned domestically abusive behaviour towards Witness A including physical assault by slapping, pushing, punching and strangling; making threats to kill Witness A; threatening to hit Witness A with a hammer; and threatening to hit Witness A’s children with a hammer. These allegations were very serious.

The General Dental Council, who regulate whether dentists should be able to continue to practice – it obviously being a job where the dentist is dealing with members of the public, sometimes in a vulnerable state, were conducting a hearing about the father. They asked the Local Authority for documents and information.

The Local Authority here should obviously have told the GDC that they would need an order from the family Court and made that application on notice – either with consents of the parties, or more likely setting out that there was opposition to that disclosure.

Instead documents were disclosed and LA staff, including their in-house advocate who conducted the hearing, filed statements for the GDC.

What occurred in this case serves as a salutary warning to local authorities and to other public bodies about the unlawful mishandling of private information before the family court.

In summary, the reason this application has been made in the High Court is because, following a request made on 23 July 2019 by the GDC to the local authority for the disclosure of information relating to the care proceedings, the local authority – Stockport Metropolitan Borough Council – provided a significant volume of documents from and connected with the care proceedings to the GDC in the absence of any order from the family court authorising such disclosure. Additionally, witness statements were also provided at the request of the GDC by two social work professionals and the solicitor advocate who represented the local authority at the final hearing in the care proceedings. It is obvious that this extensive disclosure was made in contravention of s.12 of the Administration of Justice Act 1960. Accordingly, this court was required to resolve (a) the properly constituted application subsequently brought by the GDC for disclosure of documents from and connected to the care proceedings and (b) any prospective contempt proceedings.

The Court were deciding three things – how to deal with the documents that the GDC had erroneously had, whether to now formally give permission for disclosure of material from the family Court case, and whether to deal with the LA staff in contempt hearings – it was accepted by the LA that the disclosure had not been lawful and that it amounted to a contempt of Court.

The Court decided that all of the documents that the GDC currently had in their possession should be destroyed. The Court determined at an earlier hearing that there should be leave for disclosure of material.

In relation to contempt, the Court decided this:-

The unauthorised disclosure which occurred in this case should never have happened. Mr Crabtree submitted how very seriously aggrieved KK was at having to defend himself and his livelihood without the financial resources to do so in proceedings before the GDC which were tainted by the improper acquisition of highly sensitive documents from the local authority. KK drew a distinction between the local authority and the GDC, firmly believing that it was the GDC which led the local authority into error. He thought that GDC employees and those of the local authority who should have known better should be named and shamed in my judgment. He urged me to make a costs order against both public bodies.

For its part, the local authority recognised the seriousness of its misconduct and recognised that it would be identified in my judgment. It had made an unreserved apology to KK and would be responsible for payment of part of his costs in these proceedings. However, Mr Jones KC pointed to the strenuous efforts which the local authority had made to ensure that unauthorised disclosure of material from care proceedings would not occur in future. It had set up training for staff in the authority and produced a protocol which addressed how requests for information relating to care proceedings were to be managed in future.

Likewise, the GDC accepted the seriousness of what had taken place and had offered a fulsome apology to KK. It offered to bear its fair share of KK’s costs in these proceedings and it too had engaged in an extensive programme of education and training for its staff to prevent a similar occurrence in future. The GDC accepted that it would be named in my judgment.

Given all the above, both public bodies submitted that naming individuals in their respective organisations who were at fault and who should have known better was neither necessary nor proportionate. To embark on such a process would necessitate those individuals having to obtain their own legal advice (though probably supported and funded by their employer); and to make submissions to the court on an informed basis. This would cause considerable delay and significant cost to, ultimately, the public purse. Both the GDC and the local authority emphasised that what had occurred was due to ignorance rather than any deliberate or malicious intent.

I have thought carefully about whether I should instigate contempt proceedings against both the GDC and the local authority. Applying the factors set out by Steyn J in JS v Cardiff City Council (see above), I have concluded that contempt proceedings are not warranted in the circumstances. First, compliance with the requirements of the relevant rules contained in the FPR has now been achieved and the court has ruled on the principle of disclosure generally and on disclosure with respect to certain documents. Furthermore, an extensive process of rectification has been undertaken by the GDC to identify and destroy all unauthorised disclosure in its possession. That process has consumed significant time and resources within the GDC which is a salutary reminder of the consequences for a public body of failing to comply with the court’s rules and processes. I am however satisfied that the GDC has completed the rectification process and that it now only holds disclosure authorised by the court.

Second, both public bodies have offered an unreserved apology to KK and to the court and both have put in place measures to ensure such unauthorised disclosure does not occur in future. Both will also be liable for KK’s costs in these proceedings, each paying half of the total sum. I have considered carefully the explanations offered by each for their conduct and accept this arose from lamentable ignorance in both public bodies about (a) the confidential nature of family court proceedings and consequently (b) the need to obtain the court’s permission for any disclosure of family court documents. For its part, the local authority misunderstood the obligation on it to assist the GDC by supplying it with information and documents in circumstances where it was perfectly plain that the GDC’s powers to require documents were subservient to statute and to the provisions of the FPR. The GDC also failed to understand the limits on its powers when legal proceedings had taken place which bore directly on matters of professional concern to it. Neither public body acted maliciously. Contempt proceedings would take up precious court time and resource as well as the resources of two publicly funded bodies and would, in my view, be disproportionate.

Finally, I find that bringing contempt proceedings against named employees of the two public bodies would serve no useful purpose and I accept the submissions made on this issue by the local authority and the GDC.

Conclusion

The contents of this judgment stand as a salutary warning to local authorities and to other public bodies concerned with fitness to practise in occupations concerned with or touching on the welfare of children. It is plain that there was a woeful ignorance about the confidential nature of documents produced for the purpose of care proceedings and about how requests for disclosure should be managed. The costs incurred by the GDC and the local authority have been significant and both have been shamed by what occurred. I hope what took place in this case will not happen again.

That is my decision.

It is indeed a reminder to all professionals that there are very strict rules about disclosure of material from the family Court and that before anything is shared, it is vital to properly establish that that sharing of material is lawful and that if leave of the Court is needed, it is obtained

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Very sad case

Posted on November 25, 2024 by suesspiciousminds

This is a truly awful situation. C is ten years old. She is in hospital with very serious injuries from a fire at her home. The fire killed her sister and her mother. The evidence at this stage suggests that the mother set the fire.

D is the man named as the father on her birth certificate but DNA testing has established that he is not her biological father – he would wish to be involved in her life but does not put himself forward as a carer.

A Local Authority v The child C [2024] EWFC 336 (21 November 2024)

http://www.bailii.org/ew/cases/EWFC/HCJ/2024/336.html

The Judge, Peel J, makes this clear about the LA

I make it abundantly clear that from everything I have seen and heard, the LA, whether proceedings take place under Part IV of the Children Act 1989 as a care application, or under the wardship jurisdiction, is utterly committed to promoting the best interests of C. This is not a LA which needs judicious encouragement to do so, or which will tailor its approach depending upon which legal framework is adopted.

Two legal questions arose from this very tragic set of circumstances. The first is whether the actions of a parent who died before the proceedings began can amount to conduct that satisfies the threshold criteria. The second is whether the correct legal approach in a case of this kind is care proceedings or wardship.

 On the date of the application here, the only relevant parent was deceased. A query arises as to whether it would be open to the court to make a threshold finding in these unusual circumstances. Both the LA and the Guardian agree that the LA is entitled to bring, and the court can consider, care proceedings even though the parent was deceased at the time of the application. They tell me that absence of authority on the point can cause difficulties in similar cases.

Whether, however, care proceedings are the appropriate course is another matter entirely.

There are two pre-requisite conditions for the threshold to be crossed.

First, by s31(2)(a) the court must be satisfied that “the child concerned is suffering, or is likely to suffer, significant harm”.

Second, by s31(2)(b) that (so far as relevant to this case) “the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him”.

It is well established that the relevant date for the first condition (harm) is the date of the application or, if earlier, the date upon which protective measures were implemented and continuously in place until the application. This applies both to harm which has already taken place (Re M [1994] 2 FLR 577) and to the likelihood of harm in the future (Southwark LBC v B [1998] 2 FLR 1095). This is entirely logical; if it cannot be shown at the date of the application that a child is suffering, or likely to suffer, significant harm, then there is no basis for the application and no justification for state interference.

Does the second condition (attributability) depend on the parent giver being alive at the date of the application? In theory, the argument may be that if the parent who caused harm prior to the date of the application is deceased, then it is not possible to attribute harm at the date of the application and accordingly it is not possible to make a threshold finding. I confess to find it somewhat difficult to follow this logic. There is, so far as I am aware, no temporal requirement for the second condition, namely the attributability of harm; in other words, it is not a condition that the attributability must be referable to parental care at the date of the application (which might exclude a deceased parent who is in no position to give care). There does not appear to be a case directly on the point. However, it seems to me that s31 should be interpreted purposively, and support for that approach can be found in Re J [2017] EWFC 44 where the parents of unaccompanied asylum-seeking children were either missing or deceased, and certainly were not in the position of carers at the time of the application. Peter Jackson J (as he then was) had no hesitation in concluding that the threshold criteria had been met.

In my view, the attributability requirement is not to be confined to, or aligned with, the date of the application. C was at the date of the application suffering significant harm. That harm was, on the evidence currently available, attributable to the actions of her mother a mere 7 days previously. It would be extraordinary if, in such a situation, the Local Authority could not take steps to protect the child. It would lead to the anomalous situation that the court would not be able even to inquire into threshold, however, desirable that might be, or seek protective orders. The purpose of Part IV of the Act is to enable children who are suffering, or likely to suffer, significant harm caused by parents to be protected from that harm by Local Authority intervention. To neuter s31 because the parental perpetrator of harm is no longer alive would be an unexpected, and unfortunate consequence. But in my judgment that is not the intention of the Act, nor is it what the Act says. A plain reading of the words in s31(2)(b) that the harm must be attributable to “the care given to the child” must include past care, i.e before the date of the application, which led to the application itself. The wording does not expressly add “at the time of the application” or some such rider. Nor does it say that a parent must be alive at the time of the application. If my analysis is correct, then it matters not whether the parent is alive, or dead, or missing. What matters is whether the LA can establish (i) harm at the date of the application (or, if earlier, when protective measures implemented and carried through to the date of the application) and (ii) attributability of that harm i.e that it is a consequence of parental acts or omissions.

I therefore conclude that it would be open to the court to make threshold findings even though C’s mother was deceased at the time of the application for a care order.

(Of course, if the evidence were to establish that the mother were not responsible for the fire, or for any failure to properly act to protect once the fire occurred, then it might be difficult to establish threshold…)

On the question of care proceedings versus wardship, Peel J said the following :-

Decision as to care proceedings or wardship

  1. On balance, I take the view that the preferred course is for proceedings to take place within the statutory framework provided by the Children Act 1989 rather than under the inherent jurisdiction through wardship, for the following reasons.

i) The first category identified in Re GC clearly does not apply. It is not “obvious” that the LA will be unable to satisfy the threshold criteria. On the contrary, based on the evidence currently before me, it seems probable that the criteria will be met without a need for elaborate or extensive inquiry. The coroner’s inquiry, which is due to be completed in January 2025, should add to the understanding of the circumstances in the foreseeable future. Other evidence may come to light and of course the court can take into account information which becomes available after proceedings commence: Re G [2001] 2 FLR 1111.

ii) At the very least, the interim criteria under s38 are comfortably met. Thus, an ICO can be made to govern proceedings until such time as a final determination on threshold is made.

iii) The second category in Re GC requires the court to consider (1) whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned and (2) the overriding objective under the Family Procedure Rules.

iv) As indicated above, in my judgment the fact finding part of the Part IV proceedings is likely to be straightforward, capable of being dealt with at a short hearing.

v) Further, it will give a solid factual foundation for the welfare disposal, which will impact on all aspects of C’s wellbeing. I regard it as important for the truth to be known not just for the welfare determination, but for the rest of C’s life.

vi) The fact finding inquiry would take place within the care proceedings where C is represented. The court can make findings against deceased or missing persons as Peter Jackson J did in Re J (supra).

vii) There is no reason to think that C would be affected more negatively by care rather than wardship proceedings or vice versa.

viii) Similarly I do not have any reason to think that C’s family, who are of considerable importance to her future, would be impacted any more or less by care or wardship proceedings.

ix) The LA would acquire parental responsibility under a care order in circumstances where no other person has parental responsibility. There would be no doubt as to the LA’s role and responsibilities. Thus, the proposed list of delegated functions drawn up by the parties would necessarily fall upon the LA to discharge. There would be no need to return to court in the event of any doubt, as might be the case under wardship.

x) It seems to me that it is preferable, more readily understandable and far more in tune with modern thinking, for C to have the comfort of a statutory body exercising parental responsibility rather than to be subject to the ancient concept of wardship.

xi) Of course, serious medical treatment would need to be determined under the inherent jurisdiction. To date, that has taken place consensually. It can take place separately from the care proceedings.

xii) A care order (whether interim or final) would give a clear delineation of responsibility which, for example, may assist both the LA and the Hospital Trust in working through hospital care for C.

xiii) The outcome which the LA seeks to achieve, namely placement with family members, can be properly secured both under care proceedings and wardship. But there is no obvious reason for the assessments, and exploration of all options, not to take place under the statutory framework and in accordance with settled case law.

xiv) Although I am confident that the LA is entirely committed to promoting C’s welfare, should that, for whatever reason, change, the ability of the court under wardship to order the LA to approach the case in a particular way, or devote resources for a particular purpose, would be constrained whereas under care proceedings the LA would always be subject to its statutory duties.

xv) Wardship remains an option for the future. If, for example, the threshold criteria are not crossed, or become much less clear cut for whatever reason, it may then be the appropriate route; see, for example, Re K [2012] 2 FLR 1 where Hedley J elected to make a wardship order in respect of severely disabled children rather than explore threshold where there was some doubt as to whether the threshold criteria would be met and it was held to be inimical to their interests to pursue threshold findings. Another example might be if the lines of communication between the Hospital Trust and the LA become frayed or unworkable.

xvi) By reason of care proceedings, the court will retain general oversight and can list hearings as appropriate. There is no question of the court simply abdicating responsibility unless and until C’s future is settled. This is plainly a complex case, and the court will need to scrutinise carefully the care plan and various options.

xvii) Whilst wardship is a very flexible jurisdiction, it should generally be deployed only in order to fill gaps which are not provided for by the statutory frameworks for children. Here, I am not persuaded that there are any such gaps. Accordingly, in my judgment, to make a wardship order risks cutting across the statutory regime under Part IV of the Children Act 1989 and, in particular, s100(4) and (5) thereof.

xviii) Finally, and importantly, continuation within care proceedings will require a tight timetable in accordance with the Public Law Outline. The 26 week limit expires on 5 February 2025, and I will require the IRH/final hearing to be listed before then. Wardship, by contrast, is not subject to the same strictures.

Conclusion

  1. Accordingly, I am satisfied that:

i) The application for permission to withdraw the care proceedings should be refused.

ii) The application for leave to apply for a wardship order should be refused.

iii) An interim care order should be made.

iv) Directions should be given in the care proceedings. In particular, this case must be listed for IRH/final hearing before the end of the 26 week limit. At that hearing, if it is not possible to conclude proceedings, the court will give consideration to future directions and whether the case should continue under wardship.

v) The declaration of non-parentage, and termination of parental responsibility, in respect of Mr D shall be adjourned to be considered at the IRH/final hearing. Mr D shall file within 21 days his case on this matter.

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Ooh, this is a doozy (Court of Protection)

Posted on November 21, 2024 by suesspiciousminds

Anyone at a Local Authority will have come across the tangled dynamic which is persuading a health authority that they ought to be finding a specialist bed for a young person who is obviously suffering from mental health disorders and hitting a brick wall ends up having to accommodate the young person through the inherent jurisdiction instead, often in a place that is doing its best but clearly not as good as a specialised health unit.

For that reason, I was very interested in the case of SB, Re [2024] EWHC 2964 (Fam) (19 November 2024)

https://www.bailii.org/ew/cases/EWHC/Fam/2024/2964.html

where Conway County Borough Council made an argument before Keehan J that made me shuffle three inches forward in my seat so that I was on the very edge of it.

This issue culminated in the local authority seeking a declaration and ancillary orders from this court, in short form, that because SB was detainable under the provisions of the Mental Health Act 1983 (‘the 1983 Act’), the court did not have jurisdiction to grant a DoL pursuant to the inherent jurisdiction. In practical terms, the thrust of the local authority’s case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.

It won’t surprise you to learn that the Trust staunchly opposed this

The health board strongly opposed the position of the local authority. It asserted that this court had no jurisdiction to determine whether SB detainable in a hospital pursuant to the 1983 Act; it had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and that for the court to make a declaration or findings as to whether SB was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process

The stakes are pretty high on this one. If Conway prevail, suddenly there’s a route by which the Health Authority are compelled to do something about these cases – even if they decide not to accommodate, they are at least having to make a conscious decision to not accommodate and to bear the risks of this. (I’m astutely conscious of the fact that I’m writing this as a Local Authority hack, and no doubt if I were a Health hack I’d be massively opposed to it).

There are basically two difficult competing arguments here. The first is the Trust’s argument that there are many many authorities saying that the Courts have limits to their power and should not exercise them to inhibit the actions of other statutory agencies unless they are specifically charged with doing so.

“11. The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):
“Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.”
He continued (page 797):
“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”

  1. Lord Scarman was not of course disputing the High Court’s power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court’s powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):
    “The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.”
    It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.”

The other argument is that the statute (Children Act 1989) says that the inherent jurisdiction cannot be used in a situation where there is already a statutory solution AND that section 3 of the Mental Health Act 1983 provides the statutory solution in this case. Thus that before the Court decides whether to use the inherent jurisdiction it is a necessary preliminary step to consider whether another statutory solution is available – thus the declaration they seek is just the Court doing what is required of it in any event.

LA readers here are saying “go Conway”, Health readers are saying “go Trust” (or more likely “What the heck am I doing on this website and well…how did I get here?”) and a lot of other people are doing the Alan Partridge shrug gif.

The Trust prevailed and the Court did not make the declaration:-

Analysis

The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.

Schedule 1A of the 2005 Act makes statutory provision for finding that a person is ineligible from being deprived of their liberty under the 2005 Act, where in case E, they could be detained under the provisions of the 1983 Act. This express statutory provision enables the Court of Protection to consider and determine the question of whether a person could be detained under s.2 or s.3 of the 1983 Act. It is limited to the exercise of determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act. I cannot see any basis for concluding that this provision is to be read as having a wider application, and, in particular, to permit the court to determine whether a person is ‘within the scope of the Mental Health Act’ when exercising its powers under the inherent jurisdiction.

There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under s.3 of the 1983 Act. In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act. This court has no jurisdiction to make such findings or orders.

Further, and in any event, even if this court did find favour with the opinions of Dr Vaidya over those of Dr Hales and made a finding that SB was detainable under s.3 of the 1983 Act what would that achieve? It would not, of itself, lead to SB being detained in a hospital for treatment under the 1983 Act. It might lead to the clinicians and professionals charged with making the decision to detain her under the 1983 Act, to change their professional opinions and decisions. However, to make orders in these circumstances would, as Hoffman LJ set out in ex p T (above), be an abuse of process.

If the court did make such a finding, and then went on to make the declaration initially sought by the local authority that the court could not then exercise the inherent jurisdiction to authorise the deprivation of liberty, SB could find herself in a position where she was not afforded protection by being detained for treatment in a hospital nor afforded the protection of being deprived of her liberty in a safe place. This would be an intolerable and unconscionable state of affairs.

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Fresh evidence on appeal

Posted on November 21, 2024 by suesspiciousminds

The issue of when an appeal can use fresh evidence comes up quite often – there’s the general principle from Ladd v Marshall that the Court look at three essential ingredients before deciding to allow it

Ladd v Marshall [1954] 1 WLR 1489:

(1) the evidence could not with reasonable diligence have been obtained for use at the trial;

(2) the evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive); and

(3) the evidence is apparently credible though it need not be incontrovertible

And then following the Civil Procedure Rules, Terluk v Berezovsky [2011] EWCA Civ 1534 held that :-

“In my view, the principles reflected in the rules in Ladd v Marshall remain relevant to any application for permission to rely on further evidence, not as rules, but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the Court below.”

The family Court have determined that there is more flexibility in family law cases

Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, Peter Jackson LJ (at paragraph 25) summarised the approach to be followed in these terms:

“A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.”

This case Re T (Fresh Evidence on Appeal) 2024 https://www.bailii.org/ew/cases/EWCA/Civ/2024/1384.html involved an appeal from a father against the making of a Care and Placement Order. The mother had the benefit of an intermediary at the final hearing and the father says that this intermediary identified that he was presenting with features of Autistic Spectrum Disorder

“It was suggested by the intermediary supporting the mother during the lengthy final hearing, that in her professional opinion, I was presenting with what may have been traits of an Autistic Spectrum Disorder. This was not something that had been raised previously and I do not yet have a diagnosis of this nature. Following this being raised I have now sought the assistance of my GP in making a referral for an assessment in respect of this to ensure that I am properly supported moving forward. If indeed, I do need additional support which was not available to me during the course of these proceedings and this 5 day final hearing, I would also suggest that this raises the issue of procedural irregularity and unfairness to the extent that it renders the decision unjust.”

The father paid privately for an assessment as to whether he had ASD. This was not an assessment directed by the Court, but commissioned by the father himself. The father wanted to rely on the outcome of that assessment to support his appeal.

This is interesting. Had the father been diagnosed with ASD within the proceedings, there would certainly have been some accommodations for this condition – it may have resulted in specialist reports about how best to engage with him and how he could be supported to give his evidence, it would have been taken into account by the Court (not necessarily determinative, but obviously important). Armed with that diagnosis, should that be admitted in the appeal?

The Court of Appeal said the following (which is going to be case and fact specific, but is illuminating of an approach rather than hard lines to be followed in other cases)

Ladd v Marshall does not require fresh evidence to be incontrovertible. But it does require it to be credible, or rather, in this context, reliable. I accept Ms Hargreaves’ submission that there are several reasons for doubting the reliability of Ms D’s report.

First, for understandable reasons as the father was at that point acting in person, it was not obtained in compliance with the important procedures in Part 25 of the Family Procedure Rules 2010 and Practice Directions 25B and 25C governing the instruction of experts in family proceedings in general and children’s proceedings in particular. It did not include the statement required by FPR 25.14(2) that the expert understands and has complied with the expert’s duty to the court, the further statement required by paragraph 9.1(i) of Practice Direction 25B, or the statement of truth required by paragraph 9.1(j) of that Practice Direction.

Secondly, because the report was obtained without the court’s prior permission, as required by paragraph 5.1 of Practice Direction 25B, neither the court nor the other parties had an opportunity to scrutinise Ms D’s credentials prior to the assessment. As noted above, the report states that Ms D is a psychotherapist “accredited to administer” diagnostic tools for the evaluation of persons with ASD. Ms Hargreaves submitted that the fact that Ms D was neither a psychiatrist nor a psychologist undermines the reliability of her evidence. There is certainly no basis for challenging Ms D’s statements as to her accreditation. But equally there is no basis for evaluating whether she was the appropriate professional to assess the father’s neurodevelopmental condition in the context of the issues arising in these proceedings.

Thirdly, again because the report was obtained without the court’s prior permission, neither the court nor the other parties had an opportunity to consider or endorse the terms of her instructions. The formal procedure stipulated in FPR 25.7 requires a party seeking the court’s permission to instruct an expert in children’s proceedings to file a formal application inter alia identifying the issues to which the expert evidence is to relate and stating the questions which the expert is to be required to answer. Paragraph 4.1 of Practice Direction 25C requires the party responsible for instructing the expert to prepare a letter of instruction that complies with the detailed provisions of that paragraph and is drafted in agreement with the other parties.

Fourthly, there is nothing in Ms D’s report to indicate that she had access to the father’s medical records. It is clear from a psychiatric report prepared prior to earlier proceedings in 2015, and included in the court bundle, that the father has a significant mental health history dating back to childhood. Any court asked to authorise a psychological assessment of the father under Part 25 would have ensured that the expert had access to the relevant records. In her submissions, Ms Hargreaves referred us to guidance published by the National Institute for Health and Clinical Excellence which advised that a practitioner carrying out a comprehensive assessment of suspected autism should take into account and assess the possibility of differential diagnoses and coexisting disorders or conditions. There is nothing in the report to indicate whether Ms D complied with this guidance and in any event, without access to the father’s medical records, she was seemingly in no position to do so.

Finally, any information given to Ms D about the context of her instruction came from the father himself. Any court asked to authorise a psychological assessment of the father under Part 25 would have ensured that the expert had access to relevant information about the proceedings and the issues in the case so that the report could be tailored for the court’s purposes. It is evident from Ms D’s report that it was based on self-reporting by the father, supplemented by a discussion with his mother. Given the recorder’s finding about the father’s lack of honesty, which was supported by extensive evidence from witnesses, there are significant reasons to question the reliability of information provided by the father. In that context, it is relevant to note that the psychiatrist who assessed the father in 2015 identified concerns that he “may have a tendency to confabulate, including exaggeration of symptoms”. Any instruction for a psychological assessment of the father authorised by the court under Part 25 would have identified this as an issue to be considered by the expert. I accept, as Mr Rowley pointed out, that self-reporting is a component of the ADI-R assessment tool. But in this case, apart from the tests she administered and her discussion with the mother, Ms D had no other material on which to base her assessment.

In response, Mr Rowley, whilst conceding the deficiencies in the instruction, submitted that they did not undermine the diagnosis of ASD, particularly given the apparent family history of autism. He argued that, after receiving the report, it had been open to the respondents to seek further information from Ms D, who had expressly offered to answer any further queries. Ms MacLynn responded that it would have been open to the father to take that course. Faced with a situation of this kind at first instance, it is possible that a judge reading Ms D’s report would have given permission for an assessment to be carried out in accordance with Part 25. But as an appellate court, we have to deal with this application to admit fresh evidence in accordance with the rules governing appeals, as interpreted in the case law cited above. Taken together, the deficiencies in the report identified above give rise to substantial reasons to doubt its reliability as evidence in these proceedings

The Court of Appeal considered that the second element of Ladd v Marshall – that it would have had an important influence in the case, though it need not be decisive.

In some cases, a failure to identify cognitive difficulties before a parenting assessment or to make appropriate directions to facilitate the giving of evidence will amount to a serious procedural irregularity – see for example Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8. In giving the judgment of the Court allowing the appeal in that case, however, I observed that not every failure to comply with the provisions about the evidence of vulnerable persons will amount to a serious procedural irregularity so as to render the decision unjust, noting (at paragraph 44):

“In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision.”
In my view, this is just such a case. As demonstrated in the summary of the judgment set out above, the recorder made a number of significant findings based on evidence which are not materially compromised by the fact that the court was unaware of the possible diagnosis.

Why was that? Well, there were a number of important issues here.

First, there was extensive evidence to support the finding that the father had “told wholesale lies about important aspects of his life”. This finding was based not only on the lies told by the father in evidence but also in the evidence from the assessment centres, the social worker, and the father himself, who admitted, for example, that he had lied about his employment record. There were extensive references to his dishonesty in the social services evidence, stretching back at least to 2015 when, as already noted, a psychiatrist assessing the father referred to concerns that he “may have a tendency to confabulate, including exaggeration of symptoms”. He had told lies about the care he had given to T at the B Centre – specifically, about her bathing and feeding. This was an important element in what the recorder described as his “deeply entrenched behaviours” which left him unable to provide T with consistent and safe parenting without full-time supervision and monitoring. This finding is not undermined by the suggestion that he may have a diagnosis of ASD.

Secondly, there was clear evidence to support the findings that the father’s relationship with the mother posed a risk to T, that there was a “lack of emotional warmth between them”, and that the father had been “domineering and manipulative” towards the mother. The recorder accepted that the couple had now separated, but concluded on the evidence that it was “more probable than not that the relationship will resume”, that “they rely on each other for emotional support”, and that “their lives are still enmeshed”. Given the father’s history of dishonesty, the recorder found that he could not be trusted to inform the local authority if the relationship resumed. In those circumstances, T would be “exposed to conflict [and] neglectful parenting which would impact on her emotional wellbeing”. None of those serious findings are undermined by Ms D’s diagnosis that the father has ASD.

Thirdly, there is the recorder’s finding about the father’s drinking. The evidence showed that his misuse of alcohol dated back to when he was aged 18 and that he had lied about the extent of his drinking before entering the A Centre. She accepted that subsequent testing indicated that he had abstained from drinking or had low levels of alcohol, although this had been at a time when he was “under the spotlight”. She therefore concluded that there was “still a prevailing risk that, when stressed or under pressure, the father may relapse back into drinking”. There has been no appeal against this finding which was plainly open to the recorder on the evidence. Again, it is not undermined by the subsequent diagnosis of ASD.

Finally, as both Ms MacLynn and Ms Hargreaves emphasise, the evidence from both the A Centre and B Centre assessments, accepted by the recorder, was that the father had initially been able to assimilate and demonstrate knowledge about providing basic care for T but failed to do so throughout the periods of the assessments so as to show that he had the ability to prioritise T’s welfare needs consistently. The weight attached by the recorder to this evidence is also not materially affected by the subsequent diagnosis.

I therefore accept Ms MacLynn’s submission that, while the father’s diagnosis may have had a bearing on some of the risks identified in this case, the majority and the most serious identified risks are not linked to autistic spectrum disorder.

The appeal was therefore refused. For family law practitioners it may be a helpful reminder that you can’t necessarily fix on appeal a failure to identify a client’s particular vulnerabilities or needs if this wasn’t tackled at the time.

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Adoption and contact

Posted on November 5, 2024 by suesspiciousminds

If you’ve been following the news recently, you may have heard talk of ‘the weave’, where someone appears to go off at a tangent (such as perhaps talking about Hannibal Lecter as though he were a real person, or about how smart his uncle was at MIT) with the idea that then you’d skillfully bring it back to a real message of consequence (such as, no, i’ve got nothing.)

Anyway, I’m going to write about the Court of Appeal decision in

R & C (Adoption or Fostering) [2024] EWCA Civ 1302

https://www.bailii.org/ew/cases/EWCA/Civ/2024/1302.html

which talks about the very long history of the legal principle that the Courts don’t make contact orders about parental contact against adopters (going right back to 1989) and the current landscape – not yet the legal one, but thinking on the ground, about the benefits of open adoption and post adoption contact. So it’s an interesting case.

And I’m going to start the Weave now.

People who know me well will know that my favourite book ever, and a book that legitimately saved my life in dark times is “The Worst Journey in the World” by Apsley Cherry-Garrard. Cherry-Garrard was a fairly lowly scientific officer on Scott’s ill-fated voyage to the Antarctic. Tragically, Cherry-Garrard was one of the officers who went out to find Scott and his teammates bodies when it was clear that they were not going to return alive. It’s a incredible book about bravery, fear, the awesome wonder and fear of the world’s emptiest place, friendships and sadness. One of the things that I learned from that book is that when you’re making the massively long trip to the South Pole, you don’t start from point A and go to the Pole. No, for the year beforehand, you make a succession of trips from Point A to Point B, to Point C, back to A – to point C, leaving supplies of food and oil at each point at what are called Depots. So you don’t have to haul the whole of the food and oil that you need for the whole journey there and back in one go – you just have to keep moving forward at a small distance and putting down a marker and leaving enough for the person who comes next to be able to make the rest of the journey.

I think that Re R and C, when we look back in a couple of years about the legal landscape, will look an awful lot like a Depot. We can’t make the whole journey from the many many legal authorities that currently exist saying no contact orders against adopters to making the orders in one stop – the process, if that’s what is going to happen, is going to be a series of smaller judgments getting us farther away from the starting point and giving the next Court enough food and oil to go on to the next depot and potentially all the way to the South Pole.

Let’s have a look at the case :-

This appeal is brought by a local authority against a judge’s refusal to make placement orders in respect of two young children. The principal reason for the judge’s decision was that he concluded that adoption was inconsistent with the children’s need for continuing contact with members of their birth family, in particular their two elder half-siblings. The local authority, supported by the children’s guardian, say that the judge’s decision was wrong. Its care plan contemplates that the children will only be placed with prospective adopters who are prepared to agree to continuing direct contact between the siblings.

This appeal falls to be decided at a time when there is renewed discussion about open adoption and provides an opportunity to reiterate the clear principle that, at the stage of making an order under s.21 of the Adoption and Children Act 2002 authorising a local authority to place a child for adoption, it is the court, rather than the local authority or any other person, which has the responsibility for determining whether there should be ongoing contact between the child and the birth family.

As indicated earlier, the Court of Appeal set out the long legal history about making orders about contact that would bind on adopters.

As noted above, adoption after 1926 conventionally involved the complete severance of the relationship between the child and their birth family. There were, however, exceptional cases in which contact continued. In Re C [1989] AC 1, the House of Lords allowed an appeal by prospective adopters against a decision of this Court dismissing an appeal against a judge’s refusal of the adoption application. The subject child, who was 13 years old, had a close relationship with her elder brother which the appellants accepted should continue unimpeded after adoption. Her mother, however, withheld her consent to the adoption on the ground that it would weaken the siblings’ relationship. In allowing the appeal and making the adoption order, the House of Lords (with the appellants’ support) attached a condition to the order (under the legislation then in force, the Children Act 1975) providing that there should be continuing contact after the adoption. In his speech with which the rest of the House agreed, Lord Ackner observed (page 17F to G):

“It seems to me essential that, in order to safeguard and promote the welfare of the child throughout his childhood, the court should retain the maximum flexibility given to it by the Act and that unnecessary fetters should not be placed upon the exercise of the discretion entrusted to it by Parliament. The cases to which I have referred illustrate circumstances in which it was clearly in the best interests of the child to allow access to a member of the child’s natural family. The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child’s natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.”
In the years following this decision, the principle that a court should not, save in exceptional circumstances, make an order for post-adoption contact with members of the birth family against the wishes of the adopters was firmly applied, even as attitudes towards the benefits of such contact began to change. In Re R (Adoption: Contact) [2005] EWCA Civ 1128, this Court considered an appeal involving post-adoption contact a few months before the coming into force of the 2002 Act. Having noted what he described as the “clear change of thinking” since the previous legislation was passed in 1976, Wall LJ observed (at paragraph 49):

“contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.”

Back to the central issue:-

The analysis continues at paragraphs 26 to 36, concluding with the most recent authority (which post-dated the original decision in this case:-

In Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, this Court allowed an appeal against a judge’s refusal to make a placement order and made the placement order itself. In his judgment with which the other members of the Court agreed, Peter Jackson LJ concluded that the child’s relationships with her birth family were “not of such importance that they can outweigh the predominant need for her to have a family of her own”. He described this as a factor which spoke “in favour of contact taking place, if it can be arranged, after C is placed for adoption and later adopted.” He recorded that the local authority could be “expected to honour its care plan for current contact, and for a 3-month search for adopters who will accommodate meetings with family members.” But he concluded that “overall, it would not be better for us to make a contact order, in fact it might be detrimental to the greater priority of finding an adoptive family for C.

The Court of Appeal then spoke about the broader cultural landscape in the national debate and discussions about adoption:-

Although developments in adoption policy that are not yet reflected in legislative change do not, in my view, call for detailed analysis on this appeal, it is right to record that this appeal falls for determination at a time when there is increased public discussion about the future of adoption in general and of open adoption in particular.

These issues were addressed by the President of the Family Division in his two recent lectures – “Adapting Adoption to the Modern World” (the Mayflower lecture in Plymouth, 9 November 2023, https://www.judiciary.uk/speech-by-sir-andrew-mcfarlane-adapting-adoption-to-the-modern-world/) and “Adapting Adoption to the Modern World – Part Two” (the POTATO conference lecture, 17 May 2024, reported at July [2024] Fam Law 797). As he stressed in the second lecture, neither lecture was a court judgment, Practice Direction, or Presidential Guidance, but rather an expression of his “preliminary thoughts” on the question: “How will this cultural shift towards greater openness impact upon the work of the Family Court and how may the court support the looked-for change in the default setting so that maintaining relationships with a child’s birth family is the starting point, rather than the exception?”

In the course of his second lecture, the President took the opportunity to underline some features of the existing law and also make suggestions about how the law might develop in future. He observed:

“Orders for contact made under ACA 2002, s 26 when making a placement for adoption order set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important ‘known known’ about the child to be taken on board by any potential adopters with whom placement may be considered.”
He continued:

“…the likely template for contact arrangements post adoption should be set at the placement order stage. This is not a change in the current approach. A court making a s.26 contact order, in keeping with the duty under s.1 and its lifelong focus, should have regard not only to the short-term contact arrangements required in the pre-adoption stage, but also in setting the course for the maintenance of family relations over the longer term if that is in the child’s best interests. Also, there is nothing wrong, and I would suggest it should be good practice, for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.”
In these observations, the President was doing no more than reiterating the approach to s.26 mandated by case law. He went on to express some preliminary thoughts about how courts might in future exercise their powers to make contact orders at the adoption application stage. As he acknowledged, in those remarks he was considering steps which go beyond the current case law. It is likely that this Court will consider these matters again at some point, but they do not arise on this appeal. We are concerned only with the interpretation of s.26.

There’s an interesting discussion about whether there is a difference, legally, between imposing an order on adopters who do not agree with it at the stage of adoption and on the other hand, the Court setting the tone of what contact they would expect an adopter who has not yet been matched with the child to sign up to. I.e that the Court at first instance had been treating as a binary decision – if sibling contact no adoption, if adoption no sibling contact, which is more important, when there could have been a route to achieving both.

It was acknowledged by counsel for the local authority that, under the current law, save for extremely unusual circumstances, no order will be made to compel adopters to accept contact arrangements with which they do not agree. It was submitted, however, that there is a critical difference between, on one hand, imposing on adopters a contact regime that they had never bargained for in respect of a child previously placed with them for adoption and, on the other, crafting a contact regime at the placement order stage so that the eventual adopter accepts the adoptive placement with their eyes wide open to the court-directed imperative for long-term sibling contact. Within the latter regime, the court will “set the tone” or define the template of future contact at a point well before the prospective adopter commits to the child’s placement. The use of s.26 in such circumstances would not be for the purpose of overriding an adopter’s fully formed views about sibling contact, but to shape those views before they are formed. In this case, the judge misconstrued the powers and flexibility afforded him by s.26. He wrongly considered that he lacked the ability to shape the children’s long-term contact with their siblings, and therefore allowed that factor to dominate the welfare evaluation. By concluding that he could not give the children a “guarantee” of sibling contact, he underestimated the efficacy of the statutory steps he could take to achieve that outcome. The appellants submitted that, if this approach were followed generally, few siblings from a large sibling group would meet the test for adoption.

The Court of Appeal say this:-

A key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”. As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the President has called the modern world. The judge acknowledged that the severance of ties with the natural family “can sometimes be ameliorated by continued contact between the birth family and the adopted child” and that, in this case, the local authority has “committed itself to a search only for adopters willing to promote direct sibling contact”. He discounted these factors, however, on the basis that ongoing contact “is at the discretion of the adopters” and that “sibling contact cannot be guaranteed” because “even adopters who are open to it initially may not continue to promote it after the making of an adoption order”.

In these observations, the judge overlooked the fact that it was his duty to “set the template for contact going forward”. This case seems to fall four square within the words used by Wall LJ in Re P at paragraph 151. As in that case, there is a “universal recognition” that the relationship between the siblings needs to be preserved. It is “on this basis that the local authority / adoption agency is seeking the placement of the children …. [T]his means that the question of contact between the two children is not a matter for agreement between the local authority / adoption agency and the adopters: it is a matter which, ultimately, is for the court”. In those circumstances, “it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children”.

In reaching his conclusion, the judge quoted passages from my judgment in Re T and R. It does not follow, however, that in every case where the court concludes that it is strongly in the interests of the children to continue to have sibling contact the option of adoption should be ruled out. Each case turns on its own facts. In Re T and R¸ the crucial importance of contact to the psychological wellbeing of the subject children and their older siblings, the importance of maintaining the children’s sense of their cultural and community heritage, which could only be achieved through contact, coupled with the community’s antipathy to adoption which made contact unfeasible, led to a conclusion that adoption was not in the interests of the children’s welfare. In other cases, the evidence will clearly demonstrate not only that ongoing sibling contact is in the children’s interests but also that it is likely to be achievable in an adoptive placement. In my view, this is just such a case.

Under the current law, as the President said in Re B, “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.

The Court of Appeal considered that the Judge had been wrong in their analysis of the options before them

Under the current law, as the President said in Re B, “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.

The judge was wrong to dismiss the argument that, because of their ages, R and C deserve a right to permanency on the grounds that it “comes perilously close to social engineering”. Although it is not entirely clear, it seems he used the phrase “social engineering” to mean taking a decision about the children’s future by reference to social policy rather than their specific welfare interests. But the value to a child’s welfare of the permanence which only adoption can provide has been recognised in many cases, including in passages cited by the judge from the judgments of Pauffley J in Re LRP (A Child) (Care Proceedings – Placement Order) [2013] EWHC 3974 (Fam) at paragraph 39 and Black LJ in Re V (Children) [2013] EWCA Civ 913 at paragraphs 95 – 96. Every court considering whether to endorse a plan for adoption must take into account the fact that, in Black LJ’s words, “adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.” The professional evidence before the judge was that it was in these children’s welfare interests to be placed for adoption. There was no justification for describing this as “perilously close to social engineering”.

I am also troubled by the judge’s statement that “the role of the court is to protect children from harm. It is not to improve their life chances or to move them to placements where they will be better off.” This is a distorted interpretation of the statutory welfare checklist in s.1(4) of the 2002 Act. The factors in that list include “any harm … which the child has suffered or is likely to suffer” but it also includes a range of other factors, including the ability of the child’s parents and others to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs. Where the court concludes that a child has suffered or is likely to suffer significant harm as a result of the parents’ care, the court is obliged to consider all the relevant factors in the statutory checklist in order to determine which outcome best provides for the child’s welfare throughout their life.

I am equally concerned by the judge’s further comment that “the mother cannot be completely ruled out” and that, although “at present the risks to the children of a return to her care are simply too great”, she also “has much she can offer” once she has resolved her emotional and psychological problems. It is not entirely clear what he was intending to convey by these comments. It may be that he was intending merely to express his view that the continuation of a relationship between R and C and their mother was of value to the children. But the terms in which he expressed himself imply that he was holding out the prospect of the children returning to their mother at some point in the future. If so, this was no more than a speculative hope. There was no evidence on which he could have concluded that she would succeed in overcoming her problems so that, in the words of paragraph (f)(ii) of the checklist, she would acquire the ability to “provide the child[ren] with a secure environment in which [they] can develop and otherwise to meet [their] needs”.

Overall, the judge’s reasoning in paragraphs 44 and 45 of the judgment failed to provide a sufficiently robust and rigorous analysis of the advantages and the disadvantages of the realistic options for the children, as required by repeated decisions of this Court,

The Appeal was allowed and the Court made placement orders with recitals in relation to contact:

If my Ladies agree, I would therefore propose that this Court allows the local authority’s appeal, sets aside the judge’s order, and makes placement orders in respect of both children. In addition, pursuant to s.26(2)(b) of the 2002 Act, I would add an order requiring the person(s) with whom R and C live, and any other person(s) with whom they are to live while they remain the subjects of placement orders, to allow them to attend visiting contact with their siblings N and Y six times per year, in accordance with arrangements made by the local authority. I would include in the order a recital, in terms proposed by the local authority, recording that

“the local authority confirming that, under its care plans and during its search for prospective adopters for R and C
(1) that the local authority will arrange direct inter-sibling contact between the subject children and their siblings N and Y, six times per year;
(2) that the local authority will search exclusively for and will match the subject children only with prospective adopters committed to facilitating inter-sibling contact as set out above and who will propose to adopt both the subject children;
(3) that, in the event that prospective adopters committed to facilitating inter-sibling contact as set out above have not been found within six months, the local authority will apply to the court.”
Finally, in line with the suggestion made by the President in his second lecture “Adapting Adoption to the Modern World – Part Two” (quoted at paragraph 39 above), I would propose adding a recital that it is this Court’s view that after adoption R and C should continue to have direct contact with N and Y six times a year.

I would expect to see more such recitals in cases where the Court consider it appropriate for the children’s interests to set down that marker of what contact post placement is expected by the Court. We will have to watch this space to see what happens where such recitals are made and the placement identified for the children doesn’t deliver.

We do live in a society currently where the debate on both the benefits of contact and the realities of trying to restrict all contact are going to continue to develop and the law must of course move with the times and be willing to revisit long-established principles where the landscape outside of the Court room has changed.

As I read from the splendidly dressed Oliver Conway on Twitter the other day about this case “I think we need to accept that the internet means closed adoption (where there is no contact with birth family) is pretty much unworkable”

Everyone now has a printing press and a private investigator in their pocket – every interaction a person, including a child, has leaves a digital footprint that can be traced and the ability to trace it just gets easier and easier with each passing year. The genie, if not fully out of the bottle yet, is at the very least pushing at the base of the cork with both hands and loosening it considerably.

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Jumping the gun?

Posted on July 26, 2024 by suesspiciousminds

Guidance from the Court of Appeal to Local Authorities in a situation where the Court make a Care Order and Placement Order and the parents seek to appeal.

https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/837

W & Ors (Implementation of Adoption Plan Pending Appeal)

[2024] EWCA Civ 837

In this case, the Court at first instance made Care Order and Placement Orders for four children. The parents, and grandparents all made it clear to the Local Authority that they were going to seek to lodge an appeal.

The father’s lawyers obtained funding for their appeal and notified the parties including the LA that an appeal was being lodged. Father’s solicitors kept everyone informed of progress and that an application for a stay was also being sought from the Court of Appeal.

The father’s lawyers served everyone with the notice from the Court of Appeal on 10th May. On 14th May the LA notified the father’s solicitors that it was intended to hold the farewell session of contact as no stay had been granted.

Meanwhile, there were various email exchanges between the father’s solicitor and the Civil Appeals Office concerning difficulties with the documentation which needed to be resolved before the application for permission could be referred to a judge. It is unnecessary to set these out in detail, save to note that the solicitor was informed on or around 15 May that the initial bundles filed had been rejected because they did not include sealed copies of the judge’s orders. As a result, the solicitor asked for an extension of time for complying with the directions. An extension was granted until 22 May and subsequently extended to 29 May..

After receiving notice on 15 May that the bundles had been rejected, the father’s solicitor informed the other parties, including the local authority, that the bundles had been rejected because they did not include sealed copies of the orders. He noted that the draft orders were on the portal awaiting the judge’s approval and had been there since 20 April. He asked the local authority solicitor to chase the matter for the judge’s approval. He added that he had applied for an extension of time for filing the bundles.

It seems that this correspondence setting out that the Court of Appeal had rejected the BUNDLES in the form they’d been lodge in, was misinterpreted by the LA to mean that the APPEAL itself had been rejected, which was not the case.

The LA went ahead with the farewell contact and matched the children with prospective adopters.

When the case came before the Court of Appeal, the Local Authority apologised for their actions and the Court of Appeal gave broader guidance

At the appeal hearing, Ms Thomas KC accepted that the local authority had been wrong to proceed with the farewell visit knowing that an application for permission to appeal against the placement order was pending. She explained that, having been informed that the Court of Appeal Office had rejected the bundles filed on behalf of the father, the local authority had mistakenly believed that the application for permission to appeal had been refused. Ms Thomas further accepted that, this Court having stayed the proceedings and directed that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, it had been wrong for the agency decision maker to proceed to approve the match of the children with the prospective adopters.

45.
I acknowledge that the local authority was understandably anxious that the plans for placing the children should be advanced without further delay. But their decision to proceed with the farewell visit while the father’s application for permission to appeal was pending was plainly wrong and contrary to the children’s interests. As the appeals are now being allowed (by consent), contact between the children and their parents and other family members will resume. The children are likely to be confused and distressed by what is happening, and will require very careful support and assistance to come to terms with it. There remains the possibility that, for one or more of the children, the decision at the end of the day will again be that they should be placed for adoption. If so, there will in all probability be a further break from their birth family. The damage caused by what has already happened will be compounded.

46.
It may be that there was a misunderstanding within the local authority about the significance of the appeal bundles being rejected by the office. It is clear from the emails sent by the Court of Appeal Office, however, that the refusal to accept the bundles did not mean that the application for permission to appeal was being refused. I have seen nothing in the emails sent by the father’s solicitor to suggest that this was the case. On the contrary, his emails were very properly keeping the other parties fully informed about the progress of the appeal. In Re S (Care and Placement Orders: Procedural Failings) [2015] EWFC 20, problems arose because of failures by legal representatives to keep other parties informed with the consequence that a child was placed with prospective adopters before an appeal against the placement order had been determined. In the present case, there was plenty of communication between the legal representatives but, despite being informed of the prospective appeal, the local authority proceeded to take steps to implement the plan for adoption. Even if it is correct that there was a misunderstanding about the significance of the appeal bundles being rejected by the office, that cannot excuse the actions of the local authority in arranging the farewell visit at a point when it knew that there was an outstanding application for permission to appeal. It was a grave error for the local authority to proceed with the farewell visit in this case.

47.
In addition, the decision by the agency decision maker on 24 June to approve the match was a blatant breach of the direction of this Court when granting permission to appeal that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals.

48.
In making these observations, I am not intending to criticise any individual within the local authority. I am conscious that the individuals involved have not had an opportunity to respond. It is clear from the papers that this has been a very troubling and challenging case for the children’s services department, and the care and concern which the allocated social worker devoted to the case is evident from the judgment and from her statement filed for this appeal. This Court also appreciates the very great pressures on local authority solicitors.

49.
The following lessons may usefully be learned from this series of events.

(1)
A local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.

(2)
After that point, an application for permission to appeal can only proceed if the proposed appellant is granted an extension of time for filing the notice pursuant to CPR 52,25(1) and Practice Direction C paragraph 4. In practice, given the life-changing importance of placement orders, extension of time is frequently granted if the appeal notice is filed fairly shortly after the appeal period has expired.

(3)
In cases where, after the expiry of the 21-day appeal period no appeal notice has been filed and the local authority is concerned that further delay would be contrary to the child’s interests, it should inform the other parties that it intends to proceed to take steps to implement the placement order and care plan. Having been given such notice, the onus is then on any party wishing to appeal to file an appeal notice without further delay and seek an immediate stay of the order.

(4)
Once an appeal notice has been filed and served on the local authority, but before a decision has been made on the application for permission to appeal and/or on an application for a stay, if the local authority is concerned that delays in the process are having a damaging effect on the child, it should contact the Civil Appeals Office so that consideration can be given to accelerating consideration of the application for permission to appeal. It is not acceptable for the local authority to proceed as if the application for permission to appeal has never been filed.

(5)
The local authority and any other respondents to the application for permission to appeal against a placement order must give urgent consideration to whether they should file a respondent’s statement pursuant to CPR Practice Direction 52C Paragraph 19(1) and, if they decide to file such a statement, to do so without delay.

(6)
If this Court, either before or on granting permission to appeal, grants a stay of the proceedings and directs that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, any step taken in breach of such a direction by this Court is manifestly unlawful and prima facie a contempt of court.

(7)
If there is any particular step that the local authority wishes to take to implement the placement order, it may apply to this Court for the stay to be varied . Reasonable requests of this sort are unlikely to be refused provided they do not adversely affect the welfare of the children or prejudice the outcome of the appeal. But it is difficult to think of any circumstances in which it would ever be appropriate for a farewell contact visit to go ahead when an appeal against a placement order is outstanding.

Finally, and not related to this case, a plug for the textbook that I had a hand in writing. It is called “The Dictionary of Public Children Law” and it is small and light – it would fit very easily into your laptop case and it covers pretty much every topic that you’d need to be able to get a quick answer and chapter and verse on what the law is, what the tests are, what the key precedent principles are and any relevant parts of Regulations or Child Procedure Rules. Obviously google exists to find answers to things, but the textbook has already done that for you and with the benefit of having been coaxed and finessed into a beautiful pompadour of law so that on the occasion when you’re at Court and need to quickly know how to go about making an application for a Stay or a Port Alert, you can just have everything you need at hand.

I’ve written about a fifth of it, as has the very well-known legal blogger Pink Tape (Lucy Reed KC), the barrister Gill Honeyman, HHJ Simmonds and DJ Cassidy. It packs all five of our hive-minds into a very light and convenient package – much much easier than carrying either Hershmanns or all five of us around.

https://classlegal.com/books/pre-order-dictionary-of-public-children-law-2024

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Knife to test Court security

Posted on March 22, 2024 by suesspiciousminds

This case raises both some legal questions and probably some more worrying questions about Court security.

A Local Authority v D & Ors [2024] EWFC 61 (19 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/61.html

Peel J was dealing with a case in which there was a three day final hearing involving four children and the LA plan for the younger two was adoption. The issue for this hearing and judgment was as to how the mother was going to be able to participate in this hearing, the mother having done something spectacularly unwise previously.

At a day when the case was not being heard in Court, the mother visited Court, passing through security. She went to the first floor toilets and then went back down to security and handed them a knife with a three inch blade and four inch handle, wrapped in plastic and bound in tape. It remains unclear as to how she brought this knife through security. (I can’t help but be reminded of the scene in The Godfather where a handgun is left for Michael Corleone in the cistern in the restaurant toilets to avoid detection when he is frisked – but of course we have no idea)

The mother filed a statement in which she said that she had done this to draw attention to knife crime and the laxness of Court security.

The Court Service (as in the administrative element not the judicial one) carried out a risk assessment and determined that the mother was no longer to be admitted to a Court building. This is under the HMCTS Protocol for Managing Potentially Violent People (“PVP Protocol”). This obviously came under even more focus following a life-threatening assault on a Judge in November 2023.

The mother’s solicitors also conducted their own assessment and concluded that they would not be prepared to have the mother attend their offices to participate in the hearing remotely. That’s also understandable – it is more than just one person agreeing to accept the risk as her representative – there are other lawyers, support staff and other clients and visitors to those offices whose safety has to be considered.

That left Peel J in a difficult situation – HMCS were saying that mother couldn’t come into the Court building (for understandable reasons), the solicitors couldn’t facilitate her coming to their offices for a remote hearing (for understandable reasons) yet the hearing involved her children and the possibility of adoption for which she needed to be able to participate and have her article 6 rights to a fair hearing.

The Court noted that nobody had asked for the HMCS risk assessment but that in any event these were not for public consumption.

No party has asked me for an order that the risk assessment carried out by the Court Service should be disclosed. I did not hear argument on this, but in my judgment, it is hard to see how it could ever be appropriate for a judge to order that such a document be provided to the potentially violent person and/or the parties in general. These are internal risk assessments carried out by, or on behalf of, HMCTS. They are not for public consumption.
On the other hand, a person affected by the assessment is entitled to have some sort of understanding of the basis of the assessment, i.e why a particular measure has been imposed. Here, the rationale for the risk assessment is not difficult to discern as the basic facts, outlined above, are clear. In some cases, the reasoning will be less obvious. It seems to me that it would usually be appropriate for the gist of the reasoning to be given to the affected potentially violent person, whilst taking care to ensure that none of the information provided prejudices or puts in danger a particular source of information. It will be for the potentially violent person, if dissatisfied with the arrangements resulting from the risk assessment, to apply to the court for further consideration of the steps required to enable access to justice. Although in this instance a court hearing was listed to consider the way forward, I would expect that in most cases it can be dealt with swiftly on paper.

Peel J decided that the mother should be permitted to attend Court for the final hearing but under some incredibly rigorous stipulations (note that I am absolutely saying that these are proportionate given the facts of the case – but they are on the face of them, very rigorous)


  1. In this case, given that remote attendance for M is not workable, it seems to me that M must be permitted to enter the court building for hearings provided that the following arrangements are put in place and adhered to:

i) M shall attend the building and be met by her legal representative at security, who should have passed through security before meeting M.

ii) M is not to be accompanied by anybody (for example a friend or associate) in the court building except her legal representatives and security.

iii) M is to go through full security checks, including passing through the arch, being wanded and being patted down.

iv) M’s mobile phone will be removed for the duration of her time in the court building, and returned to her when she leaves.

v) M shall, when not in court for the hearing(s), ordinarily stay in a separate consultation room which will be made available for her and her lawyers. The security staff will stay immediately outside the room.

vi) M is not permitted to take liquids into court.

vii) No fewer than 2 security guards will accompany her at all times save when she attends the toilet. Upon exiting the toilet, she will be thoroughly searched by security, and the toilets thereafter will be checked.

viii) 2 security guards will sit on either side of her in court. She will sit at the back of the court save when she gives her evidence.

ix) When the court hearing or court day finishes, there shall be a staggered exit so that M leaves the court building before anyone else involved in the case.

x) If M refuses to undertake any part of this process, entry may be barred or, if she has already entered, she may be excluded from the building.

  1. I suggested these measures to the parties, who agreed them. The measures have been agreed with the local Court Service. In this respect, I note that (i) the Court Service has a duty to ensure the safety of all court users, (ii) it is the Court Service whose responsibility it is to follow the PVP Protocol and make the risk assessment and (iii) it is the Court Service which has to provide the resources to manage and mitigate the risk. It is not for a judge to make orders against the Court Service. The order I make will record the operative measures as recitals rather than incorporate them as orders. There would be no purpose in making an order which the Court Service is unable to fulfil, and to do so could create confusion, generate delay and perpetuate the risks. There needs to be consultation and cooperation between the Court Service, judiciary and the parties to ensure that access to justice can be provided in as practicable a way as possible.
  2. The measures set out above in my judgment represent a fair balance of the competing rights, particularly under Articles 6 and 8, and a proportionate response to the potential threat.
  3. At the risk of repetition, these measures which I have outlined will not be necessary or appropriate in each case. The facts of this case are unusual. The response to each PVP Protocol incident obviously depends on the circumstances, taking into account local demands, resources and practices.

Note also that the Judge had agreed those measures with the Court Service and was plain that it would not be appropriate for the Judge to make an order against the Court Service.

You may be wondering, as I was, why it wasn’t possible for the mother to attend remotely from her own home – she was living in a homeless person unit, which probably therefore does not have the necessary facilities for someone to be on their own in a room with reliable wi-fi and no risk of being overheard or interrupted.

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The oddest argument about an Interim Care Order

Posted on March 21, 2024 by suesspiciousminds

I’ve seen lots and lots of cases about whether or not the Local Authority should have an Interim Care Order and loads about whether interim separation should be granted, but this is the first time I’ve seen a case where the Local Authority ASKED for an Interim Care Order and interim separation, got it, then reunited the child with a family member without consulting with the Guardian or IRO and were arguing with the Court that the child SHOULD be with the mother, just five weeks after securing judicial approval for removal.

What seems to lie at the heart of this is the nationwide difficulty with foster placements – there being a significant disparity between the supply of them and the demand that exists. Most people who do public children work are aware of occasions when placements are sought but not found.

Luton Borough Council v R & Ors [2024] EWFC 52 (13 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/52.html

The case came before MacDonald J, the Circuit Judge who considered the case having been understandably very concerned about the Local Authority’s change of plans for the child and their reluctance to row back on it.

The judgment sets out a lot of the background and issues at ICO stage, whilst of course being mindful that no findings had yet been made on the allegations, they are very succinctly summed up here:-

 the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.

The placement that X was in had broken down shortly after the ICO was made, and the Local Authority were not able to find any alternative foster placements. She was initially placed in a Travelodge with one of her older siblings, that broke down after 2 weeks because the sibling had work committments that could not be resolved, and X’s mother then became the carer – initially at the Travelodge and then at an Air B&B.

The Local Authority were not able to produce documentary evidence of the decision-making around this, nor the decision to place with a parent under the Care Planning Regulations and the matters that need to be satisfied before a Local Authority can do so.

The Head of Service and Operations Manager became involved and the Court was critical of the evidence that they gave, whilst acknowledging that their attendance at Court to give evidence was at quite short notice. They placed reliance on what they asserted to be a robust risk assessment. MacDonald J observes that having read the document it could not be said to be robust, further describing it as cursory and superficial.

The purported risk assessment deals only in the most cursory manner with the allegations of sexual abuse, with a brief summary of the allegations that misses out any account of X’s recent allegations against the paternal grandfather.  In particular, the superficial and incomplete narrative account set out in the purported risk assessment does not deal with the precise nature and extent of the allegations made by X and makes no reference to the views expressed by the mother concerning the source and credibility of those allegations.   The narrative makes no reference at all to the fact that on 31 January 2024 the court was satisfied, pursuant to s.38(2) of the Children Act 1989, that there were reasonable grounds for believing that X had suffered significant harm, that the allocated social worker and the Children’s Guardian were each of the view that the parents were not able to protect X from a risk of sexual abuse, that in those circumstances the local authority had sought the removal of X from the care of her parents or that there was an ongoing police investigation following the arrest of the X’s brother, brother-in-law and paternal grandfather.  Both parents informed the social worker that they have longstanding mental health issues, the mother suffering from chronic depression and anxiety and the father having severe anxiety, panic attacks, hallucinations and paranoia.  These are not dealt with.  The hurried and inadequate narrative is followed by a series of tick boxes that have themselves been inaccurately completed.  Finally, the purported risk assessment that the Head of Service and the Operations Director advanced as the forensic foundation of their conclusion that the mother is now able to protect X from the risk of sexual abuse in the interim contains no analysis whatsoever of the nature and degree of the risk of sexual harm to X or of the extent of the mother’s ability to protect from risk of sexual harm in light of the evidence available. The risk assessment does not deal at all with X’s allegations of physical abuse against her family members, including the mother.  In the foregoing context, the conclusion of the risk assessment is limited to the following, grammatically incorrect, observation:

“Although mother is able to care for X and meet her needs, and is able to keep her safe. The likelihood of X running away, not listening or following instruction, or making other allegations against her mother may be high if X does not get her own way.“

(I’d note here that your day in Court is not going well when the key document that you rely on for your case is described as a ‘purported’ X.)

Things were compounded when it appeared to the Judge that the move from the Travelodge to an Air B and B was an alteration to the interim care plan that was being devised during the course of giving evidence in real-time and that the social worker did not seem to know that the interim care plan had changed and that she should have been rewriting this.

The Court was in a difficult position legally – there are authorities that say that where the Court and Local Authority have a different view of the correct care plan / interim care plan, the Court can and should convey that to the LA and the LA should carefully take account of this and consider whether they accept the invitation to change the plan. But ultimately the general position is that the final power for the Court is to not grant the ICO – that doesn’t help here. (And obviously wardship isn’t an option to secure accommodation by the Local Authority)

The LA here were invited to change their interim care plan and decided not to do so.

This is the judicial analysis of a really desperately difficult situation

50.          In these circumstances, what is a manifestly inadequate and flawed document cannot possibly be said to support the decision making of the Head of Service and the Operations Director or the revisiting by the court of its risk and welfare assessments.  Robust risk assessment in the context of alleged sexual abuse is not derived from vague assertions about families “going on a journey with respect to disclosures of sexual abuse”.  It is derived from the careful, detailed, evidence based social work practice that is articulated in, and has been repeatedly emphasised since, the Cleveland Report and which I summarised in Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 at [599].   The purported risk assessment relied on by the Head of Service and the Operations Director in this case fails to measure up in every respect to that long-established guidance.

51.          The decision of the Head of Service and the Operations Director to place X in the care of her mother in an Airbnb, also has no forensic foundation in any other evidence.  Before deciding to place X in the care of her mother in an Airbnb, r.17 of the Regulation 17 of the Care Planning, Placement and Case Review (England) Regulations 2010 required the local authority to assess the suitability of mother to care for X, including the suitability of the proposed Airbnb accommodation, taking into account the matters set out in Schedule 3 of the Regulations.  The matters defined in Schedule 3 include the mother’s ability to protect X adequately from harm or danger, including from any person who presents a risk of harm to X, and to ensure that the home environment is safe for X.  Whilst the Head of Service asserted that approval for the placement of X with her mother pursuant to r.17 of the Care Planning, Placement and Case Review (England) Regulations 2010 had been given, neither the Head of Service and the Operations Director were able to provide the court with any documentary evidence of this decision having been considered, taken and recorded.

52.          Regulation 17(c) of the of the Care Planning, Placement and Case Review (England) Regulations 2010 further required the local authority to determine whether, in all the circumstances and taking into account the services to be provided by the local authority, the placement would safeguard and promote X’s welfare and meet X’s needs set out in the care plan.  However, once again, neither the Head of Service nor the Operation Director was able to provide the court with an amended interim care plan with respect to X.  Indeed, the care plan for X appeared to evolve during the course of the evidence, and in particular the evidence of the Operations Director.  As I have noted, as at 5 March 2024 the local authority’s position was that it would continue its search for a foster placement for X.  At the outset of this hearing, counsel for the local authority did not suggest that position had changed and nor had the other parties been put on notice of any change of position.  The social worker appeared completely unaware that the interim care plan had changed and the fact that, on the Operations Director’s evidence, she should have been drafting a new care plan. Whilst the Operations Director stated during her evidence that the interim care plan had changed from foster care to placement with the mother as the result of a considered discussion and between her and the Head of Service, I regret that I was left with the distinct impression that the Operations Director had revised the interim care plan during the course of her evidence in order to give the appearance of rationality to a decision making process that had in fact driven by a shortage of resources.

53.          Within the foregoing context, it appeared that the sole argument advanced by the Head of Service and the Operations Director to support their assertion that the mother was now able to protect X from the risk of sexual and physical abuse centred on the improvement in X’s behaviour, and thus to depart from the risk and welfare assessments of the court, was that X’s behaviour had improved in the care of her mother.  In this respect, the Head of Service and the Operations Director each argued that this improvement in behaviour was evidence of the mother’s capacity to protect X from sexual and physical abuse to a greater degree than was the case when the local authority sought the removal of X from her mother’s care.  There are obvious difficulties with that contention. 

54.          There is no robust assessment demonstrating that the genesis of X’s improved behaviour is the result of any improved capacity on the part of the mother to protect her from sexual and physical harm as opposed to, for example, the fact that X is simply happier in the care of her mother than in foster care.  In this context, time and again the Head of Service and the Operations Director mistakenly conflated improvements in X’s behaviour, which have not yet been the subject of formal assessment and may derive from any number of factors, with a reduction in the risk of harm arising from the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.  In the circumstances, I am satisfied that the noted change in X’s behaviour over a short period of time is not a sufficient foundation to depart from the risk and welfare assessments of the court.

CONCLUSION

55.          Alleged sexual abuse is a complex and grave safeguarding issue that demands a careful and precise forensic approach to evidence based risk assessment.  The casual and cavalier approach adopted by the local authority to risk assessment and decision making for X in this case is the antithesis of the correct approach and one which manifestly fails to safeguard X.  On 31 January 2024, this court assessed X to be at risk of sexual and physical abuse and assessed the mother and the father as being unable to protect X from that risk.  In that context, the court further assessed X’s welfare as requiring the removal from her parents’ care.  The local authority has to date placed nothing before the court that justifies those conclusions being revisited.

56.          In the foregoing circumstances, it is the expectation of this court that the local authority will accord the highest respect to the risk assessment and welfare assessment of this court and will now implement the decision made by the court in these proceedings consequent on its assessment of risk and welfare on 31 January 2024.  I shall list the matter for further hearing on 14 March 2024 before Arbuthnot J for the local authority to confirm to the court that this is the course of action that it now intends to take or to seek to persuade the court on proper evidence that the court should now revisit its risk and welfare assessments.  I will make further directions accordingly.

By the time of writing, that hearing before Arbuthnot J should have taken place, and I shall watch out for the decision. I suspect that the phones of the people who find placements for children will have been glowing red hot in the frantic efforts to find a placement, which as I said at the outset is not a problem unique to this Local Authority.

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Important High Court decisions on cognitives and intermediaries

Posted on February 27, 2024 by suesspiciousminds

These are two important Lieven J authorities which will be useful for all practitioners. .

West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) (23 February 2024)

https://www.bailii.org/ew/cases/EWHC/Fam/2024/395.html

It was an application for a cognitive assessment, made by those representing the mother, which was withdrawn on the day of the hearing, but the Judge considered that it raised issues that might benefit from a judgment.

I think that it is warranted – not that the features of this case were particularly bad or unique, but rather that maybe people have got a bit lax on the rules and the law since 2014 and a judicial refresher might be in order.

The application basically said this:-

The Court is requested to commission the instruction of a psychologist to undertake a cognitive assessment of the Mother to assist both the Local Authority and the court in ascertaining:
a) How any assessments should be conducted of her;
b) Her level of intellectual functioning to assist professionals in understanding how she retains information, learns parenting skills and acts on advice;
c) What support she is likely to require in any court hearings and meetings with professionals.

  1. Instructing Solicitors on behalf of [the Mother] is of the understanding that the information identified within a cognitive functioning assessment would identify recommendations which the court and professionals must utilise to ensure that [the Mother] is fairly represented within proceedings.
  2. A cognitive assessment will provide valuable insight to parties regarding how hearings or cross examination should be conducted in respect of [the Mother] and whether she will require any assistance within proceedings moving forward. If a cognitive assessment was not completed, it is believed that [the Mother’s] Article Six Rights to a fair trial will not be upheld.
  3. Furthermore, the Local Authority is likely to carry out further assessments during the course of proceedings. The cognitive assessment will be informative in respect of [the Mother’s] cognitive needs in order for appropriate measures to be put in place. This would allow [the Mother] to engage meaningfully and entirely with all meetings, assessments and court hearings.”

And those are all good reasons WHY, if the mother had a cognitive difficulty, the report would be necessary to assist the Court. What was lacking really was why it was asserted that the mother had a cognitive difficulty.

The statement in support stated at paragraph 11:
“The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information.”
It hardly needs stating that these three matters are exceedingly common in care proceedings, and do not begin without further detail, to justify a psychological assessment. An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent’s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be “nice to have”.
It would often be the case that if one parent does have cognitive issues this will have been identified at school, during previous interactions with the Local Authority and/or in pre-proceedings work. These earlier interventions will frequently identify whether there are cognitive challenges, and how they can best be handled

The Court was somewhat critical of the Guardian’s position in remaining ‘neutral’ despite the skeleton argument being plain that the test of necessity was not made out.

It is in my view unfortunate that the Guardian and her solicitor stated they were “neutral”. It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children’s solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources, in particular by assisting the Court to “Make Cases Smaller”, see the President of the Family Division’s The Road Ahead. If it is clear to the Guardian and the Child’s solicitor that an application should be refused, then they should make that clear to the Court.

Having outlined the test and the meaning of necessity, the Court reminded everyone of the Advocates Gateway and the steps that advocates and the Court can take to make it easier for parents to follow proceedings and understand what is happening.

In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs. I referred to the Advocates Gateway and the need for all those working in this part of the justice system to be familiar with it and apply its principles in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 at [46]. It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.
It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.
Conclusions

This application does not come close to meeting the test of being “necessary” to resolve the proceedings, and in my view should never have been made. The fact that Mr Leach referred to taking a “belt and braces” approach indicates strongly that the proper test was not being considered either by counsel when she advised or by the solicitors when they made the application. Unfortunately, such misconceived applications are exceedingly common, particularly in respect of applications for psychologists to undertake cognitive assessments.
Such applications waste considerable resources, both in the courts, but also in the local authorities and Cafcass when they lead to unnecessary hearings and unnecessary expense. It is important that they are not granted without the Court properly addressing the correct test.
Mr Leach referred to a psychological assessment being useful in determining what support the Mother would need to help care for the child in the future. But that is not the purpose of the Part 25 application. Further, and in any event, that type of analysis is one that all social workers should necessarily be very familiar with. There was again nothing in this case which justified going beyond normal good social work practice.
A test of necessity does not mean that a report would be “nice to have” or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.
For all these reasons I refuse the application for a psychological assessment.

The intermediary case referred to above, is also a Lieven J authority, and it is a very important one. I did mean to write about it last month, so it is a good place to pick up on it here.

The Court looked at the Court of Appeal guidance in a criminal case  R v Thomas (Dean) [2020] EWCA Crim 117. and said that the same principles outlined there apply.

The following principles can be extracted from this passage:
a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];
c. Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
d. In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];
e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.
All these points are directly applicable to the Family Court. Counsel submitted that there was a need for intermediaries because relevant parties often did not understand the proceedings and the language that was being used. However, the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening. All advocates in cases involving vulnerable parties or witnesses should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties understand and participate in the proceedings. I am reminded of the words of Hallett LJ in R v Lubemba [2014] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way round”. A critical aspect of this is for cross-examination to be in short focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand.
Finally, it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.

Practitioners are referred specifically to that first principle :- a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial.

It does not seem to have been exceptionally rare for that to happen in any case involving even a request for an intermediary to develop into that. We shall see how it plays out.

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A line from Hull to Bristol

Posted on August 9, 2023 by suesspiciousminds

This is a Court of Appeal decision about care orders at home, and the difference in practice and approach in two (not quite halves) parts of the country. I chatted about this on what we now have to call X yesterday and it drew some interest, so I’m doing a post on it.

Basically, the Court of Appeal were considering a case where a Court had made a Care Order and the child was placed at home. They raised within the appeal broader issues of how the issue of Care Orders at home was being dealt with differently based on whether your Court fell North or South of that imaginary line across the country between Hull and Bristol.

The Court of Appeal (or those who decide these things) felt the case was sufficiently important to make it to the judiciary website – it isn’t yet on Bailii

Re JW (Child at Home under Care Order) [2023] EWCA Civ 944

JW (Child at Home under Care Order)  

http://www.judiciary.uk/judgments

For some years it has been recognised that a difference exists in the approach taken by
courts in different regions when determining whether a final care order, supervision
order or no order should be made when care proceedings conclude with a plan for the
subject child to be placed, or remain living, at home with their parent(s). Broadly
speaking, if a line is drawn from Hull down to Bristol and beyond, courts in England
and Wales that are North and West of that line will often make a care order in such
cases, in contrast to courts South and East of the line where normally a supervision
order or no public law order will be made. My experience is that the judges who sit on
one side of the line or the other are confident that the approach taken in their area is the
correct one. The difference of approach is striking, and its existence has become
something of a hot potato, and increasingly so as Family Courts across England and
Wales strive, once again, to conclude public law care proceedings within the statutory
26 week time limit set by Children Act 1989, s 32(1) [‘CA 1989’].

The Court of Appeal go on to say that the last time the issue of Care Orders at home versus Supervision Orders at home was really explored in detail on appeal was in Baker J’s decision of Re DE – a case which really looked at what, from a human rights perspective, the process would be for a Local Authority to use the power under a Care Order to remove and thus disturb the care plan approved by the Court. It isn’t as simple as the LA having the power and using it – they have to follow a careful process and meet tests to ensure fairness, and there’s not an easy method for parents to challenge it – or at least challenge it with lawyers who are being financially recompensed for the work involved.

Re DE looked, at least to a lawyer on the Southern side of that divide, like it was the end of a practice of care orders at home, save in the most exceptional cases. The LA have all of the responsibility but frankly none of the power, and the parents have the spectre of the LA over them until the child is an adult and the fear that the power might be used. It doesn’t seem like an order anyone would want.

But apparently, it was not the end of that practice. My best guess is cases where a Court is worried about a child being at home and dubious about a Supervision Order being enough, but doesn’t feel placement outside the family is justified, reaching for a Care Order as being a middle ground where a greater risk can be managed at home knowing that the LA have statutory responsibilities. I don’t, however, know how that translates into the diffference either side of the Hull-Bristol line.

(The facts of this case were that the parents had 3 children aged 14, 11 and 7. The mother met and married a man named Mr P, who she learned after her marriage had been convicted for possession of indecent images of children – and obviously what an awful thing to learn. She separated from Mr P but there were concerns that she had been allowing him unauthorised contact with the children. If Mr P disappeared from the family life completely then the children would be safe at home, but would that actually happen? The Court made a Care Order for the 3 children with them to remain living with mother, presumably so that the LA could use the Re DE process to remove the children if Mr P was caught having unauthorised contact)

The mother appealed, arguing that rather than make such a draconian order, the Court should have extended the proceedings for fuller assessment of her ability to protect.

This being a judgment led by the President of the Family Division, the law and history of the law about Care Orders versus Supervision Orders is set out clearly and succinctly, and it would be an excellent basis for any lawyer constructing submissions on the point.

The judgment also discusses the Public Law Working Group (PLWG) who considered these issues and provided written guidance, which indicates that:-

‘34. The making of a care order on the basis of a plan for the child to remain in
the care of her parents/carers is a different matter. There should be exceptional
reasons for a court to make a care order on the basis of such a plan.

  1. If the making of a care order is intended to be used [as] a vehicle for the
    provision of support and services, that is wrong. A means/route should be
    devised to provide these necessary support and services without the need to
    make a care order. Consideration should be given to the making of a supervision
    order, which may be an appropriate order to support the reunification of the
    family.
  2. The risks of significant harm to the child are either adjudged to be such that
    the child should be removed from the care of her parents/carers or some lesser
    legal order and regime is required. Any placement with parents under an interim
    or final order should be evidenced to comply with the statutory regulations for
    placement at home.
  3. It should be considered to be rare in the extreme that the risks of significant
    harm to the child are judged to be sufficient to merit the making of a care order
    but, nevertheless, the risks can be managed with a care order being made in
    favour of the local authority with the child remaining in the care of the
    parents/carers. A care order represents a serious intervention by the state in the
    life of the child and in the lives of the parents in terms of their respective ECHR,
    article 8 rights. This can only be justified if it is necessary and proportionate to
    the risks of harm of the child    .’

I would set that out in a table, but I can’t know how to hear any more about tables. *

The Court of Appeal were very mindful of the wider issues in the case, and that it did not sit comfortably that two entirely different philosophical approaches to care orders at home existed in the country and markedly so on geographical lines – the North taking the view that Care Orders at home were part of a judicial toolkit for problem-solving and the South that they were a very serious intervention that would only very rarely be warranted. This needed to be resolved.

  1. 65. The present situation, in which the law is applied in a markedly different manner in two
    halves of England and Wales, cannot continue. There needs to be a common approach
    throughout England and throughout Wales. What that common approach should be has
    been determined through consultation and discussion by the multidisciplinary
    membership of the PLWG. The recommendations at paragraphs 158 to 162, and the
    Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and
    Appendix C of the April 2023 report on supervision orders, which have already had
    extra-curial endorsement, I now formally endorse in a judgment of this court. They
    must be applied in all cases. The approach taken by the PLWG is no more than the
    logical development of the earlier caselaw, once account is taken of the need for
    proportionality and once it is understood that, following Re DE, there are only
    procedural differences between the power of removal where there is a care order or
    where there is none. As Hale J/LJ made plain, it has never been the case that a care
    order should be used as a means to ensure that a local authority meets the duties that it
    has with respect to children in need in its area, nor should it be used to influence the
    deployment of resources.
  2. The PLWG recommendations and guidance can be reduced to the following short
    points:
    a) a care order should not be used solely as a vehicle to achieve the
    provision of support and services after the conclusion of proceedings;
    b) a care order on the basis that the child will be living at home should only
    be made when there are exceptional reasons for doing so. It should be
    rare in the extreme that the risks of significant harm to a child are judged
    to be sufficient to merit the making of a care order but, nevertheless, as
    risks that can be managed with the child remaining in the care of parents;
    c) unless, in an exceptional case, a care order is necessary for the protection
    of the child, some other means of providing support and services must
    be used;
    d) where a child is to be placed at home, the making of a supervision order
    to support reunification may be proportionate;
    e) where a supervision order is being considered, the best practice guidance
    in the PLWG April 2023 report must be applied. In particular the court
    should require the local authority to have a Supervision Support Plan in
    place.
  1. The impact of the requirement for a 26-week timetable and adherence to the PLO mean
    that the decision as to what final order to make may occur at a comparatively early stage
    where a child has been removed from home, but a rehabilitation plan is being implemented. In such cases, there may be grounds for extending the 26-week deadline to some extent, but where, as in the present case, the children are settled at home and what is taking place is the reinforcement and further development of protective measures over an extended period, the court should make a final order rather than contemplating extending the proceedings over an extended or indeterminate period.

The Court granted the appeal (though to make Supervision Orders rather than extend the proceedings.

*TABLES! is a reference to one of my latest obsessions, “I think you should leave” and this sketch below, which yes, i’m just crowbarring in because I love it. Warning, it does contain some strong language, so NSFW

“why was there swearing?”

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