Do you think I was born yesterday?

Posted on March 9, 2012 by suesspiciousminds

 

 

 

A headlong rush through some of the key authorities on establishing whether a young person is young enough to receive services from a Local Authority

These cases chiefly involve unaccompanied asylum seekers, because they are a debate about whether the young person in question is under eighteen at the time they present to a Local Authority requesting either support under section 17 of the Children Act or accommodation under section 20 of the Act, AND there being a dispute about whether the young person is under 18 or over 18  – UK or European nationals tend to have documentation which will establish that age beyond doubt, whereas it is common practice for unaccompanied asylum-seekers to either not have such documentation, or to have destroyed it (in order to make it harder to establish where they should be sent back to)

Sadly for anyone trying to remember these cases, nearly all of the case names involve Croydon   (alternatively, if one is trying to bluff their way through a conversation about age-assessment cases, saying “of course, the Croydon case deals with this point” is a sensible tactic)

Our starting point is with R (on the application of B) v MERTON LONDON BOROUGH COUNCIL (2003)

[2003] EWHC 1689 (Admin)

QBD (Admin) (Stanley Burnton J) 14/07/2003

Which creates for us the eponymous “Merton” assessment,  and the Court indicating that there had to be a solid evidence-based and documented assessment by the Local Authority of how they had calculated the age of the young person, and what factors they had taken into account

HELD: (1) Where it was obvious that a person was under or over 18 years old there would normally be no need for an extended inquiry into their age. However, where, as in B’s case, a UASC could not provide any reliable documentary evidence to support his claim to be a minor, the determination of his age depended on the credibility of the history given, his physical appearance and his behaviour, factors which all interconnected. There was no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. (2) It would be naive to assume that a UASC was unaware of the advantages of being classified as a child. A lack of travel documentation, including a passport, may justify suspicion, particularly where he claimed to have entered the country overtly in circumstances, for example through an airport, where a passport would be required. The matter could be determined informally, provided that minimum standards of inquiry and fairness were ensured. The decision-maker had to seek to elicit the general background of the UASC, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. A decision-maker would have to ask questions to assess a UASC’s credibility where there was reason to doubt it. It was not useful to apply notions of a burden of proof to the assessment. (3) A local authority’s social services department should not merely adopt a decision made by the Home Office, although it could take into account information obtained by the Home Office. (4) Merton had made its own assessment as to B’s age and not solely relied on the Home Office’s stance. The decision-maker’s reasons were inconsistent with the decision letter. However, it was permissible for the court to consider those reasons (Nash v Chelsea College of Art & Design (2001) EWHC 538). The evidence before the court represented the true basis of the decision and those reasons were adequate. A UASC was entitled to know the true reasons for an age assessment decision so that he could make an informed decision on whether to ask a local authority to review the decision or to make a complaint. The reasons did not need to be long or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on the inconsistencies in his history which had made the decision-maker doubt his credibility. (5) The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this. Some cases would require more inquiry than others. The court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly: it was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report. Nor was it necessary for a local authority to support a UASC for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. It was greatly preferable for an interpreter to be physically present in an interview. Verbatim notes of an interview were also useful, although not essential as a matter of law. Such notes did not have to be counter-signed by a UASC. Procedural fairness required that a decision-maker explain the purpose of the interview to a UASC. (6) If a decision-maker formed the preliminary view that a UASC was lying about his age, he had to be given an opportunity to address the issues that led to that view (R (on the application of Q) v Secretary of State for the Home Department (2003) EWCA Civ 364). The decision-maker had failed to give B such an opportunity. Merton failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure; moreover, any complaint under s.26 of the 1989 Act would have been too slow for a child without accommodation or support. Therefore Merton’s decision had to be set aside and Merton had to reassess B’s age.

I note, with grim interest, this part of the Merton decision… “The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this” sadly, this is a custom more honoured in the breach than the observance.

There were other cases prior to Merton, but this was the big one, where the Courts made a solid attempt to get to grip with the issue of young persons asking for services and Local Authorities refusing on the basis that they appeared to be older than the group who were entitled to such services.

If the Courts felt that Merton  (do a good Merton assessment, make your decision, and it won’t be judicially reviewed) would put an end to the flood of judicial review challenges, on age assessments, they were sadly wrong.

There was litigation about medical evidence, about whether medical evidence was of any use at all, about whether the Local Authority had given enough weight to the medical evidence even though it was fundamentally not of assistance (there being finally acceptance that when deciding if a young person is 17 or 19, a medical test that is only accurate to within 2 years doesn’t help  – if one ever needs to argue this, R v Croydon –of course, helps R (on the application of R) v CROYDON LONDON BOROUGH COUNCIL (2011)[2011] EWHC 1473 (Admin) QBD (Admin) (Kenneth Parker J) 14/06/2011), and every single inch of the Merton assessments as lawyers nobly representing young persons sought to establish that the LA decision not to provide their client with services was “Wednesbury unreasonable”

There then came the decision of the Supreme Court, which knocked on the head any talk of ‘unreasonableness’ and judicial review, and determined that if there was a dispute between the LA and the young person about their age, this was a decision to be made by the Court.   (This had the, one hopes, inadvertent effect of massively expanding the number of potential cases, since one no longer had to show the Court that there was reason to believe the LA had been unreasonable in their age assessment, but just that the young person disagreed with it)

R (on the application of A) v LONDON BOROUGH OF CROYDON (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) : R (on the application of M) v LONDON BOROUGH OF LAMBETH (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) (2009)

HELD: (1) In s.17(10) a clear distinction was drawn between whether a person was a “child” and whether that child should be “taken to be” in need within the meaning of the Act. That suggested that they were two different kinds of question. “Taken to be” imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts. But the word “child” was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. It admitted only one answer. As stated by Scarman L; where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied, R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 considered. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. (2) (Obiter) Those conclusions made it unnecessary to come to any firm view on the application of art.6 to decisions under s.20(1) of the Act. The House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430 had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right, but no Strasbourg case had yet gone so far, Begum considered. In the instant case, the court was reluctant to accept, unless driven by Strasbourg authority to do so, that art.6 required the judicialisation of claims to welfare services of the kind in M and X’s case. If the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of art.6, Tsfayo v United Kingdom (Admissibility) (60860/00) (2004) 39 E.H.R.R. SE22 considered.

[It is worth noting that the Supreme Court also went on to determine that a person seeking a challenge to the LA about accommodating them did not trigger article 6 of the Human Rights Act – at the time, this was probably academic, but now that the free legal advice provisions that enabled all of this litigation to be brought may vanish, it becomes more relevant. ]

It is settled law that when approaching this task, the Court is not bound by any decision of other tribunals as to their resolution of age-assessment conflict, though they may take them into account

R (on the application of PM) v HERTFORDSHIRE COUNTY COUNCIL (2010)

[2010] EWHC 2056 (Admin)

QBD (Admin) (Hickinbottom J) 04/08/2010

A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker’s asylum appeal.

The approach to be followed

 

Mr Justice Holman was the first judge to really grapple and set some guidance for the brave new world of Judges no longer just deciding whether the LA had behaved unreasonably, but actually deciding how old the young person in question was.  [Note that Mr Justice Holman ruled that the medical evidence was admissible into the fact-finding hearing, notwithstanding the earlier criticisms of it in the Croydon case referred to above, and also that he considered the cases to still run on a judicial review model, with permission being required]

R (on the application of F) v LEWISHAM LBC : R (on the application of D) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interested Party) : R (on the application of Z) v GREENWICH LBC : R (on the application of C) v CROYDON LBC : R (on the application of S) v SOUTHWARK LBC (2009)

[2009] EWHC 3542 (Admin)

QBD (Admin) (Holman J) 17/12/2009

HELD: (1) The approach to disputed age cases had been clarified by the Supreme Court. There still had to be an assessment by the local authority; judicial review was the appropriate mechanism and remedy for any challenge to that assessment and on any judicial review the essential issue was one of pure fact for the court, Lambeth LBC followed. The instant cases would be listed for a fact-finding hearing to determine whether, on the relevant date, C were children and if so, their date of birth. Once the court was required to engage on determination of whether a person was, on the relevant date, a child, it had to go on to make its own determination as to actual age or date of birth. (2) Proceedings such as the instant cases remained firmly proceedings for judicial review. Accordingly, permission was required before the claim could proceed. The relevant test for the grant of permission where the person had been assessed as over 18 years of age on the relevant date was whether there was a realistic prospect that at a substantive fact-finding hearing the court would reach a relevant conclusion that the person was of a younger age than that assessed by the local authority and was on the relevant date a child. Where a local authority had assessed the person as under 18 years of age on the relevant date, the test was whether there was a realistic prospect that the court would conclude that the person was of a younger age than that assessment. (3) The standard of proof in all such cases was the ordinary civil standard of the balance of probability. As to the question of where the evidential burden lay, that was entirely a matter for the judge at a final hearing and might depend on the facts and circumstances of individual cases. (4) If local authorities wished to defend cases by reliance on assessments of their social workers, then they had to produce those social workers for cross-examination if required. (5) Fact-finding hearings could not ordinarily take place without some involvement of the claimant and the engagement of the claimant with the court as, in most if not all cases, there was some issue as to the credibility of the claimant and the account that he or she had given regarding their history. However, the extent to which, and manner in which, a claimant participated or gave evidence was quintessentially a matter for the judge. (6) A major issue in such cases had been whether a decision of the local authority not to take into account medical evidence rendered the underlying decision regarding age assessment vulnerable to judicial review. There was nothing in the judgment of Collins J to indicate that such medical evidence was so unreliable or so unhelpful that it could simply be ignored altogether. The evolution of the approach to be taken indicated that such medical reports could not be disregarded by local authorities or by the court, Croydon LBC considered. Therefore, in the instant cases in which there was already such evidence, that evidence could be admitted into the proceedings and relied on.

Mr Justice Garnham QC developed this practical guidance further, in that the Court was not obliged to nail their colours to the mast on a firm date of birth, but rather to assess what was the most likely of a range of dates proferred.

R (on the application of N) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 862 (Admin)

QBD (Admin) (Neil Garnham QC) 16/03/2011

HELD: (1) A declaration as to a person’s date of birth could not be granted as a matter of course, especially in circumstances such as in the instant case where the declaration had potential effects on third parties who were not before the court, including the Home Office. Such a declaration would only be appropriate after careful consideration of the evidence. A court had to exercise an original jurisdiction and determine the precedent fact of whether the claimant was a child, and if so, his date of birth, for which the standard of proof was the ordinary civil standard of a balanced probability, R. (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 W.L.R. 2557 followed and R. (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 F.L.R. 1463 applied. A court faced with such a question was not considering whether it had been shown on the balance of probabilities that a particular date was the true date of birth, but making an assessment of the most likely date of birth after comparing a wide potential range of dates, MC v Liverpool City Council [2010] EWHC 2211 (Admin), [2011] 1 F.L.R. 728 applied. Where all other factors were equal, the date might well be the middle of the appropriate range, because proximity to error increased towards the extreme ends of the range (see paras 2-5, 9, 35 of judgment).

Burden of proof

There had been some debate about whether the burden of proof was on the young person (since they were claiming to be a child and entitled to services) or the Local Authority (since they were claiming that the young person in question was not entitled to the services)

The Court of Appeal determined last year in R (on the application of CJ (BY HIS LITIGATION FRIEND SW)) v CARDIFF COUNTY COUNCIL (2011)

[2011] EWCA Civ 1590   that the burden of proof was not on the young person to prove that they were under 18, reversing the decision that had been made in the High Court on the same case.

The High Court’s supervision of the exercise of jurisdiction by an inferior court, tribunal or public body was not an issue which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the 1989 Act was inquisitorial and to speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Once the court was invited to make a decision on jurisdictional fact, it could do no more than apply the balance of probability to the issue. A distinction needed to be made between a legal burden of proof and the sympathetic assessment of evidence. In evaluating the evidence it might well be appropriate to expect conclusive evidence from a claimant but the nature of the evaluation would depend on the particular facts of the case. Where a range of powers and duties which were exercisable dependent on the age of an individual were raised in the same proceedings, it would be highly undesirable for contradictory findings to be made as to the existence of the precedent fact. The nature of the inquiry in which the court would be engaged was itself a strong reason for departure from the common law rule which applied a burden on one or other of the parties. The court, in its inquisitorial role, had to ask whether the precedent fact existed on a balance of probability

.

[It is worth noting, however, that in the particular case, notwithstanding that the young person did not have to prove that he was under 18, the Court of Appeal agreed with the conclusion of the High Court that the young person was in fact over 18 and thus not entitled to the services he was seeking. ]

On burden of proof – the Courts have also ruled that the issue of burden of proof should only arise where the matter is so finely balanced that it was only this that would tip the balance

R (on the application of U) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 3312 (Admin)

QBD (Admin) (Judge David Pearl) 14/12/2011

HELD: When considering an age-assessment case, a judge had first to examine all of the evidence that had been presented and try to arrive at an assessment of the person’s age. Only if it was a close decision would it be necessary to resort to the burden of proof,

Is the judgment on age assessment confined to the Children Act proceedings, or broader?

 

In R (on the application of MWA) v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) BIRMINGHAM CITY COUNCIL (2011)

[2011] EWHC 3488 (admin)

QBD (Admin) (Beatson J) 21/12/2011

 

The High Court found that the young person was over 18 and agreed with the Local Authority age assessment – disagreeing with two decisions of the Asylum and Immigration Panel that he was under 18.  (This of course poses an interesting internal dilemma, since the Court’s decision is binding for the purposes of the Children Act, but the AIP for the purposes of asylum and immigration, and the young person is currently occupying a state of flux akin to Schroedinger’s cat, being simultaneously under 18 and over 18. )

 

but, hoorah! The Court has also resolved this, by indicating the cases in which it is sensible for the age-assessment decision to be binding on everyone.

 

 

R (on the application of AS (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 2091 (Admin)

QBD (Admin) (Judge Anthony Thornton QC) 25/10/2011

it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone

I have found over forty reported cases on age assessments of unaccompanied asylum seekers, and those obviously don’t include any that are resolved by a Court but don’t have any particularly interesting or novel clarifications of points of law.  That includes seventeen in 2011 and thirty since the Supreme Court ruling.

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Respect my prior authoriteh !

Posted on March 7, 2012 by suesspiciousminds

 

“I guess one person can make a difference… but most of the time, they probably shouldn’t”   – Marge Simpson

 

I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority.  This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all”  and “the report to be filed and served by 1st April 2012”  to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”

 

 

If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”

 

Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.

 

Order :-

The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case.  In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than                (2 weeks time).  If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.

 

Skeleton

Case No: 

IN THE                                  COURT

 

IN THE MATTER OF

 

AND IN THE MATTER OF THE CHILDREN ACT 1989

 

B E T W E E N:

Applicant

-and-

 

1st Respondent

-and-

 

 

2nd Respondent

-and-

 

 

(by his/her/their Guardian)

3rd Respondent

 

_____________________________

Skeleton argument

Prepared by the Local Authority

______________________________

 

 

Brief background

 

 

Proceedings in relation to                                            were commenced on                          .  [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]

 

The concerns in the case relate to                                           as set out in the threshold document [page reference].

 

 

 

 

On [date] , the Court made the following direction relating to the instruction of an expert:-

 

 

 

 

Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority”  – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.

 

Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.

 

The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

 

 

The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.

 

 

 

The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.

 

It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.

 

This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.

 

 

 

 

Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.

 

 

 

The law

 

 

Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.

 

That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably

 

CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)

 

[2004] EWHC 2529 (Fam)

 

In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision  (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.

 

It will be noted that the LSC played an active role within that case.

 

The principles in Calderdale were revisited in

 

LAMBETH LBC v S (2005)

 

[2005] EWHC 776 (Fam)

Fam Div (Ryder J) 03/05/2005

 

Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.

 

 

Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient)  :-

 

Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”

 

Paragraph 62 : –  “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”

 

Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”

 

 

 

 

 

 

 

 

 

The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party.  There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.

 

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

(a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party

 

 

The Court must consider, in any application to vary or discharge the original order :-

 

Section 1 (1) of the Children Act 1989  “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.

 

And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

 

The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)

 

 

It is submitted as a result of all that has preceded,  that :-

 

(a)    the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)

(b)   the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs  (pace Calderdale)

(c)    The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)

(d)   The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order.  (pace rule 25.4 (4) of the Family Procedure Rules 2010)

(e)    If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989

 

And that

 

(f)    the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.

 

 

The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.

 

In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.

 

In general, the Local Authority would suggest that where Prior Authority is  refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally.  The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.

 

 

 

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Three, is not the magic number

Posted on March 3, 2012 by suesspiciousminds

I’ve been pondering this week about an issue that seems to come up more and more. Obviously, this whole article is prefaced by the caveat that children are better off with their birth family or family members if at all possible, even if that means a lot of support going in, so the issue arises in cases where the Court is being presented with a plan by the Local Authority that a sibling group can’t go home to the birth family or extended family.

It is the vexed question of separation of siblings – how far can anyone predict whether the future desired placements will materialise, does there ever come a point at which the desired outcome of keeping a sibling group together actually becomes harmful (i.e the trade-off between them being together versus them not having stable, lasting placements but running the risk of placement breakdowns), and to what extent is the detail of the care planning for a sibling group within the control of the Court, and what happens if the Court don’t want to let go of the reins because they doubt that what has been promised will be delivered?.  I’m probably going to do a post about the official solution to the “starred care plans” issue, and whether that official solution actually works in practice  (hint, since the introduction of the IRO referring to CAFCASS, CAFCASS making an application system has been in place, CAFCASS have had 8 such requests, and issued on none of them)

But one thing kept coming to my mind, and it is that children in a sibling group of three are the most difficult in this argument. A single child, siblings don’t arise. Two children – you generally want to keep them together (although if there’s a big age difference, that can be tricky) and you stand a good chance of doing so. Four children, it is generally accepted that you’re unlikely to be able to keep them together and although you may try to find such a placement, the consensus is that it would be a beautiful and pleasant surprise if you managed it, but not something you’d be condemned for if you couldn’t. Five and over, and it is accepted that the siblings would have to be split and the debate is about how to do this.

When you have a group of three, however, there remains a disconnect between what people hope and expect  (you should be able to keep these siblings together, and you must find them a placement together, because splitting them would be terrible) and what the reality of carers searching for sibling groups of three actually are.  Even assuming your sibling group of three has no particular quirky features, no unusual cultural issues, not a high level of post placement contact being planned, they have no significant behavioural problems  (all of which assumptions are not necessarily the reality), the carers in the available pool who are looking for sibling groups of three are very limited.

A figure I saw this week suggested that currently for sibling groups of three or more, there are far, far, far more sibling groups looking for carers than there are carers looking for sibling groups.  [I was going to give the figures, but had an attack of unease about doing so – but if you’re imagining that there are five sibling groups for every one carer looking for a sibling group, you’re way, way overestimating the number of carers]  

That doesn’t mean that one shouldn’t try, or shouldn’t try really really hard, or that for any one of those individual sibling groups that not being placed together is anything other than a  tragedy  (having already given my caveat that this arises only if they CAN’T go home or to extended family), but it strikes me that no matter how hard one tries, no matter how fervently every professional involved scours the potential placements, not all of the sibling groups who are competing for a much, much smaller pool of carers are going to find placements together.

Even if we tripled the number of carers who want sibling groups; by some magical recruitment process, or as Gove is suggesting by dramatically reducing standards/the exhaustive bureacratic and draining process (depending on where you stand), still the vast majority of those sibling groups of three waiting to be placed together (who all professionals have determined, really really need to be together if at all possible) are going to be let down. And are we letting them down further by spending months of such a critical period in the children’s lives searching for something that has a high probability can’t be delivered?

I don’t know what the solution is. Long-term, taking action to either support families, to prop up and improve placements within the family, to get the treatment that parents who have been through the care system process badly need, or earlier intervention on the first child, so that we don’t get three children needing to be removed, with a view to massively reducing the need for large sibling groups to come before the Court. A whole different approach with foster carers – the concurrency model rolled out across the board, so that more often than not, the people fostering the children during the proceedings do so with an open mind that they would offer them a home for life, if needed? I don’t know what you would need to offer, or seek in recruitment to make concurrency foster placements the norm rather than an exception.

But we are working in a reactive system. What Government is ever going to throw millions of pounds of public money in helping parents who have heroin addictions or alcohol problems, and stand firm in front of the criticism that would come from the Daily Mail about that policy? Even if those millions would save that tenfold over time, and greatly reduce the human tragedy that ever single set of care proceedings inevitably is, no matter how well handled they are?

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“You can’t handle the truth!”

Posted on March 1, 2012 by suesspiciousminds

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

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Not just clean-bowled

Posted on February 27, 2012 by suesspiciousminds

I’ll be doing a more detailed analysis of the Government’s decision, when responding to the Family Justice Review, to not adopt the recommendation to abolish Court fees for care proceedings, which went up from £175 per case to around £5000 (if the case goes to final hearing, it is cheaper if it is resolved at Issue Resolution Hearing), but in very broad terms :-

The consultation about the change to fees was rolled out on a Government website on New Year’s Eve  (I like to think Local Government lawyers are hard-working and don’t keep the hours that the general public might stereotypically associate with public sector workers, rightly or wrongly, but even we have better things to do on New Year’s Eve)

The consulation proceeded on the premise that the principle that the full costs of care proceedings to the Court service should be met by Local Authorities. And basically gave a range of choices about whether they wanted to be punched in the stomach, kidneys or face while they were being mugged. There was plenty of talk about how the fee increase wasn’t intended to be a lever to drive down the number of care applications within that consultation. Most LA lawyers who responded to the consultation made exactly the point that there was a risk of it being used that way. The consultation disregarded this.

The numbers of care proceedings issued dropped like a stone (there was the additional complication of the PLO, which got rid of delay in care proceedings (ha!) by front-loading them so that all the delay happened before the case got to Court, so I couldn’t claim that they were responsible for the entireity of the plummet)

Then Baby P came along, the numbers spiked up and have kept doing so, and the Government invited Lord Laming to report, saying that they would accept all his recommendations. He reported, saying that he feared that if even one application that should have been made to Court had not been because of the fees, then they should be scrapped and recommended that a report look into that.

The Plowden review reported and recommended the abolition of Court fees.  The Government didn’t respond to that. In fact, it took a Parliamentary question to get from them that they intended to kick it into the long grass and leave it for whoever won the (at the time imminent) election to resolve.

The new Government kicked it into the long grass, and waited for the Family Justice Review. The interim FJR recommended the abolition of court fees. The full report came, and recommended the total abolition of Court fees in care proceedings. The Government accepted most of the other recommendations (wavering about presumptions of shared parenting) and rejected the abolition of Court fees in care proceedings.

To me, this is a batsman at the crease who is clean bowled, and says he wasn’t ready, then is LBW next ball, and says the sun was in his eyes, and then finally is caught and just stands at the crease, refusing to walk and says “Come on, next ball – I’ve got a good feeling about this innings”

Why does it matter?  Well, it has a huge financial impact on Local Authorities – it would be fair to say that most of them don’t get anywhere close to breaking even from the money Central Government gave for this purpose, and pay out far, far more. But more importantly, it has an impact on parents.

When I started out, I used to issue care proceedings on parents who were in danger of losing their children if they didn’t turn things around – we applied for Supervision Orders and Interim Supervision Orders. And in many cases, being in Court, and having representation, and hearing from a Guardian and a Judge who would explain to the parents that they could be helped to avoid an awful calamity did the trick.  LA’s don’t apply for many Supervision Orders now – despite the spike in the numbers of proceedings, most of the time, LA’s go to Court when they perceive they are at the end of the road with the parents (sometimes we’re right, sometimes we’re wrong, but the mindset is that we are in Court to say ‘we can’t manage this at home any more’).   The application form for Care proceedings has a section on it (before the page where the form asks you the gender of the mother…) where you indicate whether you seek an Interim Care Order or an Interim Supervision Order.  If I had any confidence that HMCS kept stats, that would be a fine Freedom of Information question – the proportion of cases where an LA issues seeking an Interim Supervision Order  (reflecting that it isn’t the end of the road, but a significant junction where a parent can choose a better course)

And the other huge impact that the Government hasn’t thought about, is that if you keep the Court fees as they are, and implement the hard six month cap; you exclude Local Authorities reaching a conclusion in cases where there’s general progress, but a wobble (a parent is abstinent for five months, but has a lapse just before the final hearing for example) to say “Let’s give this a try with a Supervision Order – we can always bring it back to Court”  if giving that benefit of the doubt is going to cost £5000 to get it wrong. Much easier to do it under a Care Order.  Which is fine if the lapse was just a lapse, and no more, but what happens when it is a relapse instead, and rather than having to bring it back to Court and prove it, the Care Order (which remember will come with a much looser care plan than at present) just kicks into force and the child is removed without a hearing?

I rather suspect we might be seeing an increase in the number of Care Orders made at final hearings, as an accidental consequence of a flawed system.

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what can the past of section 31 tell us about the future and the Family Justice Review?

Posted on February 14, 2012 by suesspiciousminds

 

 

No plan ever survives contact with the enemy

 

 

                                      Helmuth von Moltke the elder

 

 

 

I’m fairly sure that I’ll be writing about the Family Justice Review and their proposals on many occasions, but I just wanted to set aside any ideas for a moment about the merits of the ideas within it, or how practical they are to implement, and just to take the main headline idea and imagine how it will be once exposed to lawyers in the field; using the history of the threshold criteria and the litigation around that as an example.

 

I’m sure everyone who has done any public children work knows that the test for whether the Court can consider making orders that give the State (in the form of Social Services/the Local Authority) powers about children,  is the ‘threshold criteria’ set out in section 31 of the Children Act 1989.  (It is worth noting that the threshold criteria being met doesn’t mean that an order will be made or what it would be, but rather that it allows to proceed to the next stage of considering what is in the child’s welfare – no threshold means the State has to go away)

 

Section 31 (2) says “A Court may only make a care order or a supervision order if it is satisfied  –

 

(a)  that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)  that 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; or

(ii)          the child’s being beyond parental control  “

 

 

That appears to me to be a solid piece of drafting– positively wonderful by modern standards (where half of the relevant bits would be defined in Schedule 2 and another key element being with reference to other sections). It is self-contained – everything you need to know is set out in that one section, rather than cross-referring, and using everyday language and concepts.  [You can see, for example, that paraphrasing it as ‘the State have to prove that you’ve caused your child harm, or will probably cause them harm in the future, by not doing what the State expects of you as a parent’  distils the essence of it, without getting too far away from the concepts as stated]

 

Now, following contact with lawyers and thirty years of cases which have unpicked within it every single word other than ‘child’, the actual unspoken and unwritten, but legal meaning of the section is as follows, [original in bold, additions in italics]

 

 

“A Court may only make a care order or a supervision order if it is satisfied [on the balance of probabilities, with the burden of proof falling upon the applicant Local Authority]   –

 

(a)  that the child concerned is suffering [at the time of the hearing of the application for the care or supervision order, or at the time when the local authority initiated the procedure for the protection of the child concerned provided those arrangements have been continuously in place until the time of the hearing – to cover the situation where a child is voluntarily accommodated before the application is made and would no longer be currently suffering significant harm at the time the application were made, it is possible to consider later acquired information as to that state of affairs at the relevant date but not evidence of later events unless these events can be used to show the state of affairs at the relevant date ] , or is likely to suffer [likely meaning having a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case, the seriousness of the allegations or the consequences having no impact upon the standard of proof to be satisfied,  and the facts upon which that prediction of likelihood is based having been proven to the balance of probabilities to have actually occurred, it not being sufficient that those facts may have occurred or that there is a real possibility that they did, and establishing that one child did suffer significant harm does not automatically establish that another child of the same family is likely to suffer significant harm, note also that the Court is not limited to looking at the present and immediate future but may look at the long-term future], significant harm [the harm must be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it; society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, it is not the province of the State to spare children all the consequences of defective parenting; the harm must be more than commonplace human failure or inadequacy, where considering whether a child’s health or development has been significantly harmed one has to compare with that which could be reasonably expected of a similar child; and

(b)  that the harm, or likelihood of harm [see everything above], is attributable to –

  1.     the care given [which can go beyond physical care and includes emotional care] 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 not necessary that there be culpability on the parents part who may be trying their hardest yet failing to reach the required standard of care and thereby causing significant harm, also this test can be met in a circumstances where one parent has caused significant harm and the other has not, or where a parent and a person other than a parent, such as a childminder, cannot be excluded from having perpetrated an injury to the child where the identify of the perpetrator cannot be established on the balance of probabilities even where there is only a possibility that the parents themselves were responsible for injuries that the child had sustained,  regard may also be had to whether the failure of a local authority to provide the necessary statutory support has contributed to this]; or
  2. the child’s being beyond parental control [this must have caused the significant harm or created the risk of such harm, there is no requirement to show some failure on the part of the parent in order to establish that a child is beyond parental control, and parental control is something which will no doubt vary with the age of the child] “

 

 

and we have gone from an 87 word definition to nearly 700  words, nearly an eightfold increase; and from a definition of a vital concept which could be read (albeit with some throbbing about the temples) by an ordinary person  to one which is to all extents and purposes unintelligible.

 

 

The point is, that these were all ‘clarifications’ or glosses to the existing statute that were required, and which arose in the context of individual cases where those shades of meaning were vitally important.

 

I have particularly fond memories, having lived through it of the changes to “likely” where there was a period when one couldn’t tell from one month to the next whether a sexual abuse allegation was capable of meeting the threshold or not. Frustrating for the day to day job, but fascinating for the inner-law-geek.

 

This was largely through the H&R case which changed tack at various stages of the process until the House of Lords delivered a final decision in 1996.  During that lengthy process, the sands were shifting as to whether the law was going to import an additional test in accordance with David Hume’s philosophy that ‘extraordinary claims require extraordinary proof;  or in the gloss put on it by lawyers ‘that where the allegations are very serious, a higher standard of proof is required’, this eventually morphing into ‘for very serious allegations, the difference between the criminal standard of proof and the civil standard is, in truth,  largely illusory’ –  this last commonly asserted maxim, derived from some judicial remarks in firstly a sex offender order, and secondly an ASBO case took a second House of Lords case in Re B  2008 to finally resolve once and for all  that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied.

 

 

So, and here is the million-dollar question, how robust can a six month cap on the duration of care proceedings be, even if it is put into statute?  The fact that the FJR and the Government response both talk about there being a need for Judges to be able to make exceptions to the six month cap where the welfare of the child requires it, means that a  clause that says :-

 

Section 1   “The duration of care proceedings shall not, under any circumstances, exceed six months, the duration being calculated as being from the date that the proceedings are issued to the making of a final order”

 

cannot be what is being considered, and anything with more fluidity than that is just going to be litigated with vigour, to try to expand the definitions and categories and terminology that applies to the exceptions, and in the meantime, there will be a temptation to instead fudge the 6 month cap by saying that in the circumstances of this particular case, the child’s welfare requires additional time for the issues to be determined.

 

We are, after all, a group of professionals who spent from 1989 to 2008 arguing about what the word ‘likely’ meant, and aren’t necessarily done with it quite yet.

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Posted on February 14, 2012 by suesspiciousminds
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I was reading a case today – notably this one 

L (Children) [2011] EWCA Civ 1705

 in which Lord Justice MacFarlane manages to squeeze more elegance into one paragraph than most mortals can dream of  – thus

“In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge’s detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?” 

The appeal is considering some very specialist medical evidence, centring around whether two children who had died did so of unnatural causes, or of some medical condition; and what impact that had on the likelihood, or otherwise of future harm to the siblings. More than that, however, the Court had to wrestle with the hypothesis that the cause of the children’s deaths might be as yet unknown to medical science, and thus unquantifiable. The experts were, no doubt through very careful, appropriate and skilful questioning, drawn towards placing some percentage chance on that possibility – two felt that the chance of the cause being non-accidental was around 90%, and one felt that it was no higher than 70%.  Both, of course, result in it being open to a Judge to make a finding that it was more likely than not that the deaths had been caused non-accidentally and go on to derive a likelihood of harm to the younger children.

But it struck me, that here were doctors, extraordinarily eminent in their field and capabilities – with demonstrable, verifiable and repeatable empirical evidence – they had been able to conduct tests and establish the presence of a particular gene variant; yet prepared to tell a Court that effectively their science only goes so far, and that there are possibilities that we do not yet know of, that in years to come might very well dramatically tip those percentages given above.

It reminded me of RE R (A CHILD) sub nom R (CARE PROCEEDINGS: CAUSATION) (2011) [2011] EWHC 1715 (Fam)       Sadly, I don’t have a link on that one – but the facts are fascinating – a serious head injury, coupled with a leg fracture. The Court grappled with the medical evidence, and one medic in particular outlined to the Court that there was a school of thought in relation to head injuries amongst medical specialists which simply accepted that at present, we just don’t know enough to be confidently certain and making bold diagnosis about causation of injuries.

Again, that’s an expert who has the basis of science and empirical evidence behind them. There are scans and tests, and results, and what one expert sees on the scans, another would see (though they might come to different conclusions about the cause, they’d agree on the nature of the injury)   And yet, within care proceedings, one never sees that with psychologists – a Socratic acceptance that we don’t yet know everything, and we are making our best informed guess at it, based on the information and techniques that usually work.  A key difference for me, is that the medical experts are looking at something which has happened, and can look carefully at the evidence that supports such a diagnosis, whereas the psychologists are taking something as generally unpredictable as human behaviour, and what someone might do in six months, a year, and making predictions about the future for that person – notwithstanding that the sort of person who often goes to see a psychologist in care proceedings is doing so because they’ve lived a life doing non-rational and unpredictable things.

I personally think that the doctors who spoke up in those hearings and said effectively “It would be lovely to be able to tell you that I’m SURE that this was an accident, or not an accident, or organic in cause, but all I can be SURE of, is that we can’t be SURE”    – my more cynical youth would have speculated that they were making a name for themselves as helpful people to call if you wanted a counter-opinion, but I think with the benefit of age and experience, that they were just calling it truthfully.

If the people who are telling you, with tests and X-rays, and chemical analysis, that they can’t be certain of what happened in the past; how can we put so much stock in the people who tell us with no hard science that they’re sure of what is going to happen for this child in the future?

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Hello world!

Posted on February 14, 2012 by suesspiciousminds

There are lots of bits of family law that I like – wrestling with the LSC and prior authority is not one of them, I have to say. Of which, more probably later.

 

But I think, even as a long-standing local authority care lawyer, these are my two favourite extracts from judgment  (even more than Kent County Council v G saying “you can’t make the LA pay”… )

 

Lord Templeman in Re KD 1988   “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature” 

 

and building on that, Lord Justice Headley in Re L (Care threshold criteria) 2006  “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.” 

 

I happen to think that those two sentiments are very sound building blocks for a system of family justice, and a starting point that the State intervene only when to not do so would be harmful to the child. I’m not sure those sentiments will necessarily hold sway in ten years time, as we move towards cheaper and quicker justice, with fewer questions being asked, but I hope to be wrong.

 

The blog is going to be about law, and an unhealthy fascination with the detail of it, and occasionally the politics of it; as they pertain to child protection law. It will often be with a local authority slant, though I hope I’ve said enough above to convince you that it isn’t going to be any Daily Mail  “adopt-em-all and throw away the key” tirade.

 

The name of the blog is a combination of healthy scepticism, an unquenchable desire to impersonate Roland Gift singing that particular Elvis song, and a lifelong love for Dr Suess.  Thanks for reading…

 

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