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

 

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

 

In this case

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

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

ii) I should not name her in the judgment,

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

 

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

 

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

ii) the ABE interviews were excessively lengthy and instructed;

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Every breath you take

 

 

 

This is a Court of Appeal decision in relation to a mother, who amongst other things suggested that she and her five year old should be capable of being ‘breatharians’, that is living without food and possibly water.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/2281.html

 

C (A Child) (Special Guardianship Order) [2019] EWCA Civ 2281 (20 December 2019)

 

[This is annoying, because I drafted this last week, but needed to add the Ricky Jay references in, and then lo and behold, this week’s episode of QI touched on Breatharians, making me look like some sort of Johnny-come-lately..]

34… He decided that they were established based on the matters set out in the threshold document. “Key to the crossing of the threshold” were the parents’ respective mental health difficulties. These had “rendered them effectively unable to care for C when these proceedings commenced”. He was also satisfied that the parents’ “rejection of modern medical care” had led to C’s health needs being neglected in particular in respect of the discrepancy in the length of her legs which affected her gait. This was “an example of the problems which the Local Authority say would arise if C’s parents were to reject medicine entirely in the future”. He identified one “controversial factual” dispute, namely whether the mother would continue to take the prescribed medication, to which I return below.

 

 

 

35.When dealing with the background, the judge referred to the parents’ lifestyle and their beliefs. He commented that the mother has “adopted a lifestyle which can be said to go well beyond the merely alternative” and that her beliefs are “deep-rooted”. She “has difficulty accepting not just the validity of Western medicine but that such medicine is not in itself harmful”. He also said that: “Perhaps at its most extreme the mother has suggested that both she and C ought to be capable of being ‘breatharians’, meaning that they should be able to survive without food and possibly water”.

 

 

 

36.The judge expressly “emphasised” that, having heard the mother give evidence, she “clearly loves her daughter dearly and wants by her own lights the very best for her”. He also referred to the “full benefit which natural parenting brings to a child”; he attached “particular importance” to this. The judge separately addressed C’s wishes and feelings, as set out below, but he also expressly recognised that C “will at some level want and she certainly needs a close relationship with her mother”.

 

 

 

37.The judge summarised the evidence from the psychiatrist. He noted the mother’s initial refusal to take anti-psychotic medication and that since then she has “abided by [her] medication regime”. In her oral evidence the mother said that “she will continue to take that medication for so long as it is advised”. The judge recorded the medical evidence that, if she “abides by her current regime, then there is … a good prospect that her condition will remain stable and continue to improve”.

 

 

 

38.One issue had a significant impact on the judge’s assessment of the mother and on his ultimate determination. This was whether the mother had or had not told the social worker who undertook the parenting assessment that “she would cease to take her medication when the proceedings come to an end”. The mother disputed that she had said this. Her evidence was that she had told the parenting assessor that she had explored alternatives and found one in ginseng tea, adding that she “would not in fact, certainly if so advised, cease to take her medication”.

 

 

 

39.The judge preferred the evidence of the social worker. He was “a professional assessor”. The “answer had struck [the social worker] and he checked it with the mother”. This was a “highly significant element within his assessment”. Further, the judge noted that the mother “has for so long adhered to an alternative lifestyle that I cannot believe [she] only recently … discovered ginseng”. Nor, he added, “is it in any way clear to me how the mother could rationally believe that ginseng was a potential cure for her mental illness”.

 

 

 

40.The judge concluded that this issue indicated more than that the mother was “still merely lacking insight into her condition”. He concluded that the mother’s explanation of her conversation with the social worker had been untruthful, which led him to question “how sincere the mother is in other aspects of her evidence”. I return to this below.

 

 

 

41.This led the judge to have “difficulty in accepting the mother’s evidence” that she would abide by the treatment programme, in particular medication, for her mental health disorder. This, in turn, led the judge to conclude that “there remains a significant chance … that the mother’s current progress in terms of her mental health will not be sustained”. If the mother did not continue with the treatment, there was “not simply a risk but, according to (the psychiatrist), close to a certainty of a relapse”. The mother’s condition would “deteriorate within weeks or months” and she would be “unavailable” to C. This “undoubtedly represents a potential source of future harm to” C.

 

The mother denied that she had told the assessor that she would cease taking her anti-psychotic medication, and instead asserted that she had been exploring other options including ginseng, but would not cease her medication if doctors advised against it.

This is the first reported case involving breatharians that I’ve been able to find.

 

Essentially the belief is that through meditation and enlightenment, a person can achieve a state where they do not need food to survive and can survive on sunlight alone.

 

One of my favourite books, Ricky Jay’s  “Jay’s Journal of anomalies” has a chapter all about the Victorian practice of people who claimed to have done this and who would lock themselves in rooms without food or water and then charge people to come and look at them through windows or keyholes.

One particular one is Bernard Cavanagh, of County Mayo, who took London by storm by allowing them to view his supervised fast, which he said had been in progress for 5 1/2 years.

 

Jay gives a lovely piece of interview / interrogation where you MIGHT think Mr Cavanagh is being somewhat elusive

 

Q: Is it true you haven’t eaten for 5 years?

C : Wouldn’t I eat if I was hungry?

Q: But do you eat or drink anything?

C : Wouldn’t I drink if I was thirsty?

Q : Don’t you ever take anything in the shape of food?

C : Wasn’t the door locked up?

He was finally undone by a Mrs Harriet Hatt, who had been to see and marvel at the Fasting Man, and was thus surprised the next day to see the same man in a butcher’s shop ordering ‘a saveloy, threepenny worth of bread and a quarter pound of ham cut particularly fat…

Mr Cavanagh admitted that he had bought the food, having been tempted, but that he had thrown it away without eating it.

At the inquiry conducted by the Mayor, one of the most beautiful lines I’ve ever read was uttered.

“What, said the Mayor, would become of our country, prosperous in commerce, magnificent in war, happy in land, triumphant on the ocean, what would become of us if we suffered Cavanaghs to purchase saveloys?”

Mr C was sentenced to prison, once month for the saveloy, fourteen days for the bread and six weeks for the ham cut particularly fat…

 

I did find litigation based on the idea that mystics can control all of their bodily functions and even appear to need no food, drink or even show signs of life, so I invite you to  go down the rabbit hole of this:-

 

Court to Decide Whether Guru Is Dead or Just “In Deep Meditation”

 

Where litigation have gone on for about five years now as to whether a swami in a freezer is dead (hint yes) or has simply been holding his breath all this time (no) – the people arguing that he is still alive are not at all motivated by that allowing them to continue to control his assets of $170 million, not in the slightest.

 

 

Anyway, back to our case

 

The appeal was based on an assertion that the Judge was wrong to have made a Special Guardianship Order and had not properly applied Hedley J’s Re L case (that society and the Courts must be willing to tolerate very diverse forms of parenting ). People seem to continue to not appreciate that the Court of Appeal have ruled that Re L is applicable to arguments as to whether threshold is crossed, but not where the threshold is crossed.

Re H (A Child) (Appeal) [2016] 2 FLR 1171

 

76.When dealing with public law proceedings, McFarlane LJ dealt specifically with the relevance of Hedley J’s remarks in Re L. They were “entirely directed to the question of the threshold criteria”, at [89], and were “describing the line that is to be crossed before the state may interfere in family life”, at [91]. He also noted that although “Hedley J’s words in para [50] are referred to in each of the main judgments in the Supreme Court in Re B [Re B (a child) (care order: proportionality: criterion for review) [2013] 3 All ER 929], such references are in the context of consideration of the s. 31 threshold rather than welfare”, at [91]. He concluded, therefore, that the trial judge’s reference to what Hedley J had said about the need for society to “be willing to tolerate very diverse standards of parenting” was “out of place, as a matter of law, in a case where the issue did not relate to the s. 31 threshold, but solely to an evaluation of welfare”, at [93]. The judgment then addresses the issue of proportionality, at [94] and [95].

 

The Court of Appeal gently reminded everyone of this, and then set out that so far as issues about parents ‘character’ were concerned, the Court must confine those to the way that their character may affect their parenting.

 

 

 

 

79.I deal first with ground (a), namely the submission that the decision in this case was based on a flawed approach to the mother’s lifestyle and beliefs and offends against the principle that the courts “must be willing to tolerate very diverse standards of parenting”.

 

 

 

80.As referred to above, the case of Re L, from which the words quoted above derive, was concerned with threshold. The present case is not concerned with threshold. However, although McFarlane LJ considered that, what might be called the Re L perspective, is “out of place” in a welfare evaluation, it is clear that the “character of the parents” is relevant “only to the extent that it affects the quality of their parenting”, as referred to by Lord Wilson in Re B, at [30]. Although that case was also dealing with the issue of whether the section 31 threshold has been crossed, in my view the relevant consideration when the court is making a welfare determination remains the extent to which the character of the parents, in terms of lifestyle and beliefs, “affects the quality of their parenting”, to adopt Lord Wilson’s phrase from Re B, at [31]. This is because the court is assessing the welfare consequences for the child of that parenting.

 

 

 

81.The judge did describe the mother’s beliefs as “very strange” but this was in relation to the mother’s suggestion that she and C “ought to be capable of being ‘breatharians”. In my view, it is clear from other references in the judgment and, indeed, the overall structure of the judgment that the judge was specifically considering the manner in which the mother’s beliefs impacted on her care of C. The judge considered whether they were a potential source of harm and decided that they were. They were also relevant in the welfare analysis when the judge considered C’s needs. He was “not satisfied” that the mother “would, at the moment [or] in the longer term, be able to meet those needs”. None of these conclusions were based, as is submitted on behalf of the mother, on the judge’s “disapproval” of the mother’s beliefs but on the likely welfare consequences for C.

 

It seems very clear to me that in looking at the aspects of mother’s character that had an impact on whether she would be likely to comply with the necessary medication to manage her mental health and a belief that she and her child could survive without food and drink, those aspects were obviously relevant to parenting.

 

The Court of Appeal also give this guidance

67…I agree with the submission that, when a court is determining care proceedings, and even if the ultimate decision is to make a special guardianship order (which is legally not a public law order), there are good reasons for the court dealing with the threshold criteria. In particular, this will set out the court’s conclusions on the evidence and provide a clear factual foundation both for the basis of the order and for any applications made in the future.

Discrimination on grounds of race – assessment of adopters

 

 

 

 

This is a civil case relating to a claim of direct discrimination on the grounds of race by Adopt Berkshire, an adoption agency involved in the assessment, recruitment and approval of adopters.

 

Mander & Anor v Royal Borough of Windsor & Maidenhead & Anor [2019] EWFC B64 (06 December 2019)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B64.html

 

 

 

Mr and Mrs Mander are British citizens, born in Britain and both are of Indian descent. They sought to become adopters and approached Adopt Berkshire to progress this.

 

An adoption social worker met with them and told them that Adopt Berkshire would not be progressing their assessment past the initial visit and that they would not be invited to fill in a form called ROI (Registration of Interest form).  That’s the form that progresses an expression of interest in adoption to starting the assessment process itself. Without that, there’s no assessment and thus no approval and thus no placement of a child.

 

Mr and Mrs Mander say that the social worker, Ms Shirley Popat, told them in terms that this was because they did not meet the racial profile of the children that Adopt Berkshire had available, and specifically that :-

 

 

 

 

 

 

 

 

 

 

 

(i) Adopt Berkshire only had white British pre-school children available for adoption;

 

 

 

 

 

(ii) this situation would continue for the foreseeable future;

 

 

 

 

 

(iii) Adopt Berkshire already had a surfeit of white British pre-approved prospective adopters;

 

 

 

 

 

(iv) priority would be given to white British adopters in the placement of these children as they shared the same background; and

 

 

 

 

 

(v) the chances of Adopt Berkshire placing a child with Mr and Mrs Mander were therefore remote.

 

 

 

5.Mr and Mrs Mander say that Ms Popat told them not to be discouraged from adopting entirely, as she saw no reason why they would not be good prospective adopters. She suggested they keep in touch with Adopt Berkshire and try again in a few years in case the situation had changed. She suggested they consider an international adoption from India.

 

 

 

Ms Popat and Adopt Berkshire deny that this was said to Mr and Mrs Mander.  This argument is somewhat shot in the foot, because when Mr and Mrs Mander asked Adopt Berkshire to provide written reasons for not progressing their application, Adopt Berkshire sent this:-

 

 

 

“In making this decision [not to progress you to application stage], we took into account a number of factors including:

 

 

 

 

 

◦the profile of children currently available for placement both locally and nationally;

 

 

 

 

 

◦the fact that in the 17 months since Adopt Berkshire was launched we have not had a single child of Indian or Pakistani heritage referred to us for placement;

 

 

 

 

 

◦the fact that we had recently made contact with a number of local authorities which have significant Indian and Pakistani communities and with several Voluntary Adoption Agencies and they all reported that they had a number of sets of Indian and Pakistani adopters approved and waiting placement but were experiencing a dearth of children requiring placement who would be appropriately culturally placed with these families;

 

 

 

 

 

◦the fact that there are currently many more approved and waiting adoptive families across the U.K who are hoping to achieve the placement of a child/ren of pre-school age than there are children for placement and that this therefore makes it unlikely that a child whose cultural heritage was significantly different to your own would be placed with you.”

 

 

 

7.After acknowledging that the local and national picture may change over time, Ms Loades continued:

 

 

 

 

 

 

 

 

 

 

 

“…it is hard at the current time to advise you how best to proceed regarding adopting within the U.K.; however another option that you may wish to explore is the option of adopting from India – while this is likely to be a lengthy process and may be financially stretching, it may ultimately be more likely to enable you to achieve the placement of a young child whose cultural heritage is similar to your own”.

 

 

 

If this is different to the alleged oral reasons given, it is in the hair-splitting territory. It is plain that the major (if not sole) reason for not progressing the application to a full assessment of suitability is based on race.  Note that Mr and Mrs Mander were NOT saying that they themselves only wanted to adopt a child of the same ethnicity.

 

Adopt Berkshire confirmed at the hearing that there was nothing in their discussions with Mr and Mrs Mander to suggest that they would not be suitable carers for children or suitable adopters

 

 

 

 

 

 

 

 

 

10.          The Defendants have at all times made clear that there was nothing in Adopt Berkshire’s dealings with Mr and Mrs Mander which suggested that they would not be suitable people to adopt or could not offer a loving and caring home to a child. The Defendants’ witnesses reiterated this in their written and oral evidence.

 

 

 

Mr and Mrs Mander, supported by the Equality and Human Rights Commission brought an action for direct discrimination on the grounds of race, and also a claim under articles 8, 12 and 14 of the Human Rights Act.

 

 

 

I’ll deal with the HRA aspect first, as that was quite straightforward and was dismissed.

 

 

 

 

 

108.        Mr and Mrs Mander submit that in this case the Defendants by their actions prohibited them from founding a family contrary to Article 12, which was breached in a manner that was not in accordance with the national law as it constituted direct discrimination on the grounds of race contrary to the EA. Further, they claim that because it constituted direct discrimination, it was in breach of Article 14 when read with Article 12.

 

 

 

 

 

 

 

109.        Mr and Mrs Mander have not satisfied me that the ambit of Article 12 encompasses the right to found a family by adoption of a child in all circumstances. X v Netherlands specifically holds that it does not, and that it is left to the national law to determine whether, or subject to what conditions, the exercise of the right in such a way should be permitted. Accordingly, to paraphrase Lord Nicholls at [26] of M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 WLR 637, [2006] HRLR 19 (cited at [65] of Wilkinson v Kitzinger) the Commission in X v Netherlands is saying that Contracting States are not currently required by the Convention to include within the right to found a family guaranteed by Article 12, the right to adopt a child. That is left to the national law. The manner in which the UK has determined rights relating to adoption is in the statutory framework that it has put in place by way of the 2002 Act, the Children Act, the AAR and the Statutory Guidance, and the remedies for discrimination in relation to the provision of adoption services are found in the EA. Accordingly I accept Miss Foster’s submission for the Defendants that there is no place in this case for a claim of breach of the HRA.

 

 

 

 

 

 

 

110.        For those reasons I dismiss this element of the claim.

 

 

 

In short, there is not a RIGHT to be able to adopt that is actionable under article 12.

 

 

 

Direct discrimination was, however, the central plank of the case.  Had Mr and Mrs Mander been treated (in the refusal of their wish to be assessed as adopters) in a way that they would not have been treated if they had been white, for example?   (It doesn’t seem too tricky to resolve that, but of course there was a lot of argument, because no adoption agency wants to be labelled as having racially discriminated against someone)

 

 

 

The Court found that the first stage of the claim was made out :-

 

 

 

 

 

79.          Mr and Mrs Mander case is that the Defendants directly discriminated against them by treating them less favourably than they treat or would treat others because of their race, and specifically:

 

 

 

 

 

 

 

 

 

i) From 26 April onwards, refusing to progress Mr and Mrs Mander’s application for approval as prospective adopters, and therefore refusing to permit them access to the adoption service provided by Adopt Berkshire, contrary to section 29(1) EA;

 

 

 

 

 

ii) By terminating the provision of the adoption service provided by Adopt Berkshire to Mr and Mrs Mander on 26 April 2016 contrary to section 29(2)(b) EA;

 

 

 

 

 

iii) By subjecting Mr and Mrs Mander to the following detriments contrary to section 29(2)(c) EA:

 

 

 

 

 

a) informing Mr and Mrs Mander by telephone on 31 March 2016 that they should not bother to apply to be approved to adopt because of their “Indian background”;

 

 

 

 

 

b) from 26 April 2016 refusing to progress their application for approval as potential adoptive parents and refusing to reconsider the reasons for the rejection of their application; and

 

 

 

c) suggesting in the letters of 4th May 2016 and 16 June 2016, that Mr and Mrs Mander should consider adopting from India.

 

 

 

 

 

Finding of prima facie case of direct discrimination

 

 

 

80.          In this case, I am satisfied on the evidence before me that Mr and Mrs Mander have made out a prima facie case of direct discrimination. The basis of the claim is well and contemporaneously documented. There is either no dispute that the acts complained of took place (refusing to progress Mr and Mrs Mander’s interest in adoption, refusing to reconsider their application, suggesting they adopt from India), or Mr and Mrs Mander’s account is not challenged and I have accepted it (informing them by telephone that they should not bother to apply to be approved to adopt because of their Indian background). There can be no real dispute that both contemporaneous notes and the reasons given in writing afterwards by Ms Loades and Ms Redding, being employees of Adopt Berkshire and RBWM respectively, cited Mr and Mrs Mander’s ethnicity as a relevant consideration. The defence is really on the basis of an adequate explanation for differential treatment, which the authorities make clear that I do not consider at the stage of determining whether a prima facie case is made out. Accordingly, I must find that there is direct discrimination unless the Defendants can satisfy me on the balance of probabilities that they did not discriminate against Mr and Mrs Mander.

 

 

 

Having established that there is a prima facie case of direct discrimination, the Court then have to look at what Adopt Berkshire say as to why there WAS NOT discrimination in fact.

 

 

 

Note that intention to discriminate doesn’t come into it. 

 

I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

Lady Hale in JFS put the criteria/motive question this way in [62] of her judgment:

 

 

 

 

 

“[62] … there are in truth two different sorts of “why” question, one relevant and one irrelevant. The irrelevant one is the discriminator’s motive, intention, reason or purpose. The relevant one is what caused him to act as he did. In some cases this is absolutely plain. The facts are not in dispute. The girls in the Birmingham case [1989] AC 1155 were denied grammar school places, when the boys with the same marks got them, simply because they were girls. The husband in the James case [1990] 2 AC 751 was charged admission to the pool, when his wife was not, simply because he was a man. This is what Lord Goff was referring to as “the application of a gender-based criterion”.

 

 

 

 

 

 

 

[63] But, as Lord Goff pointed out, there are also cases where a choice has been made because of the applicant’s sex or race. As Lord Nicholls put it in the Nagarajan case [2000] 1 AC 501, 510 – 511:

 

 

 

 

 

 

 

 

 

“In every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.”

 

Adopt Berkshire’s case was that Mr and Mrs Mander were rejected because the social worker and Agency were looking at the merits of assessing someone for whom they thought the eventual end point would not be likely to result in a match of a child being placed with them for adoption.  (I see the point, but common sense still seems to say to me that the only reason the Agency had thought that was because of their race…)

 

 

 

 

 

 

 

 

 

 

 

84.          What were the factual criteria that Ms Loades applied in rejecting Mr and Mrs Mander from proceeding to ROI? Ms Loades agreed in cross- examination that she selected potential adopters to progress at the IVR Meetings who she felt were mostly likely to succeed to placement. This was also the evidence of Ms Popat, it is reflected in Ms Loades letter of 4 May and Ms Redding’s letters of 14 June and 18 August 2016. I remind myself that was summarised in Ms Redding’s 18 August 2016 letter as follows: “Given the current position regarding the availability of children for adoption within the UK, Mrs and Mrs [sic] Mander are, for the reasons outlined in my previous letter, unlikely at this time to be able to achieve the placement of a child of Indian, Pakistani or mixed heritage. In addition there is currently a significant surplus of already approved White British/European adopters within the UK who are seeking placement of a child aged under four years. Therefore it is also highly unlikely that Mr & Mrs Mander would be able to achieve the placement of such a child however open they are to considering this placement option”. Most importantly, it is also the Defendants’ pleaded case. They plead that they decided not to progress Mr and Mrs Mander’s expression of interest in being approved to adopt any further, because it was adjudged that there was insufficient likelihood at that time that a child or children would be matched and subsequently placed with them for adoption within a reasonable timescale, and in reaching this decision, they took into account the profile of children who required placement.

 

85. Miss Foster in her skeleton and closing submissions has sought to widen the Defendants’ pleaded case.

 

 

 

 

 

 

 

86.          Firstly, she submits for the Defendants that targeted recruitment is condoned in the Statutory Guidance (at paragraph 3.6 of Chapter 3) as a legitimate method by which to recruit potential adopters who can meet the needs of waiting children and, in particular, the needs of harder to place children. I agree. However, in my judgment that guidance is about encouraging applications from a wider pool of prospective adopters and increasing the number of available adopters from particular communities, not about turning away applications on a summary basis, outwith the published processes, from prospective adopters who meet the eligibility criteria but who Adopt Berkshire consider on an Initial Visit do not, or might not, meet further unspecified and unpublished criteria.

 

 

 

 

 

 

 

87.          Secondly, she submits that whether a prospective adopter can meet the needs of harder to place children lies within the discretion of experienced social workers, such as Ms Popat and Ms Loades. Although Mr and Mrs Mander say that they were willing to take sibling groups and look outside their own ethnicity, Miss Foster submits that it is for Ms Popat and Ms Loades as experienced social workers to interpret that and “filter it through the lens of their professional judgment” to decide as a matter of judgment and discretion whether they fitted within the Defendant’s criteria.

 

 

 

Her Honour Judge Clarke rejected this.

 

88.          I do not accept this submission. It is clear from the statutory framework and the AB Guidance that whether or not Mr and Mrs Mander were suitable to be approved as prospective adopters should be a matter for information gathering at the post-ROI pre-assessment Stage 1, and for assessment by an Adoption Panel at Stage 2. Whether Mr and Mrs Mander could meet the needs of harder to place children should be a matter for assessment only after an Adoption Panel has approved them, at the matching stage. Ms Loades in cross-examination accepted that:

 

 

 

 

 

 

 

 

 

i) part of the next stage of the process, once an ROI form was filed, was to work with potential adopters to see if they were willing to broaden the scope of the children that they might consider adopting, whether that was in terms of age, or higher needs, or differing ethnicities, or taking sibling groups;

 

 

 

 

 

ii) the ROI application form was much lengthier and contained much more in-depth and detailed information than would have been gleaned by a social worker at the Initial Visit.

 

 

 

89.          Accordingly, although the motive for the decision-making may have been to try and put forward prospective adopters who Ms Loades and her team considered would provide a good match for children waiting for adoption, I do not accept that the ability to meet harder to place children was a factual criterion at this stage, as Adopt Berkshire did not have the information properly to assess it. I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

 

 

…I am satisfied that the factual criterion which was given overwhelming priority in that decision, and the later decision not to reconsider that decision at the round-table meeting, was Mr and Mrs Mander’s ethnicity.

 

 

 

 

 

 

 

 

 

99.          The ‘crucial question’, as Lady Hale put it in JFS, is whether Mr and Mrs Mander received less favourable treatment by being (i) refused to progress to ROI; (ii) terminated from the prospective adopters approval process (and so the adoption service of Adopt Berkshire); and (iii) subjected to the pleaded detriments; on the grounds of race, or for some other reason. The Defendants have not satisfied me to the civil standard that Mr and Mrs Mander received this less favourable treatment for some other reason and so they have not displaced the presumption of direct discrimination arising from Mr and Mrs Mander’s prima facie case.

 

 

 

 

 

 

 

100.        For those reasons I find that the Defendants directly discriminated against Mr and Mrs Mander on the grounds of race, as pleaded.

 

 

 

Damages were set at £60,000.

 

Re B-S for Secure Accommodation BIG BIG BIG


 

 

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

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

 

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

It is long, but read it.

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

 

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

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

 

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

 

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

 

(a)that—

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

 

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

 

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

 

And the statute goes on to say :-

 

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

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

 

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

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

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

 

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

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

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

 

 

 

 

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

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

 

 

 

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

 

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

 

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

 

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

 

 

The Court of Appeal decisions follow:-

 

What is ‘secure accommodation’?

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

 

 

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

 

(oh good)

 

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

 

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

 

 

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

 

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

 

What role does welfare have in the decision?

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

 

 

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

 

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

 

 

 

 

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

 

 

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

 

 

 

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

 

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

 

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

 

 

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

 

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

 

The Court of Appeal say that the statutory guidance is WRONG

 

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

 

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

 

 

 

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

 

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

 

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

Relevant criteria revisited

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

 

 

 

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

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

 

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

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

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

 

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

!!!! TEST ENDS!!!!

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

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

 

 

What is the Relevant Date?

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

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

 

Inherent jurisdiction – yes, with a pretty huge but

 

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

 

 

 

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

 

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

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

 

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

 

 

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

 

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

 

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

 

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

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

 

 

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

 

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

“And all the pieces matter…”

 

 

 

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

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

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

 

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

 

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

 

As the Court of Appeal say in the judgment

 

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

 

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

 

The Court were sympathetic to the pressures on the Judge

 

 

 

 

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

 

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

 

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

 

 

 

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

 

 

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

 

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

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

No case to answer in care proceedings

 

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

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

 

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

 

Re AA and 25 others 2019

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

 

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

 

The Judge derived three questions to be answered

 

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

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

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

 

In effect

 

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

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

 

Can I?

 

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

 

So yes, the Court CAN

 

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

 

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

 

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

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

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

 

 

 

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

 

Looking at this further

 

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

 

 

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

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

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

 

Don’t turn around

 

I’m going to write about the appeal reported on Friday which revolved around judicial misconduct.  I’ve been beaten to it by both Pink Tape and Civil Litigation blog here http://www.pinktape.co.uk/rants/judicial-conduct-what-about-the-context/    and here  https://www.civillitigationbrief.com/2019/10/25/appeal-allowed-when-the-trial-judge-overstepped-the-line/  respectively.

 

So I’m not going to go into as much detail on the background as they do.  Their pieces are both very good, so read those when you’re done.

C (A Child) (Judicial Conduct) [2019] EWFC B53 (16 October 2019)    

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B53.html

 

 

A District Judge (DJ Mian) in Birmingham decided a care case after a 5 day final hearing. The Judge granted an placement order for the child, M, who was 1.   M had an older sibling, N, who was already the subject of a Care Order (to a different Local Authority) and was in residential care though possibly moving to a grandmother in due course.

At the hearing, the parents accepted that they could not care for M.  The only options were adoption or placement with the grandmother.  The placement with the grandmother was complicated, because it depended in part as to whether N was going to go to live with her.

The judgment was 38 pages and very detailed. The Judge hearing the appeal, HHJ Rogers   (one of the most courteous barristers I’ve ever met, a really lovely man)  noted that the judgment was thoughtful and careful and

The legal exposition, read in isolation, could not possibly support an arguable case that there was a misdirection.

 

The appeal, however, was largely based on judicial misdirection that the Judge had really been deciding about the plan for M whilst thinking too much about the plan for N (a child with whom she was not charged with considering) and judicial misconduct.

In essence, the Guardian had been saying at final hearing, you shouldn’t rule out placing M with the grandparents just because N is going there, because N  has problems that might mean the plan to put him with grandparents never happens.

  1. In the course of the Guardian’s examination in chief the Judge intervenes (E222):
  2. “No, there are two things going on here and this is what has, forgive me, with the greatest respect, seems to have, confused the front bench completely. There are two things going on here. One is the actual plan for N and that is to return home. And there were several attempts to go behind that plan which I have fairly robustly drawn an end to on the basis that you cannot go behind that plan. There are three ways of looking at it. The second is the reality and, as I said to everybody, in particular the grandparents, they may be absolutely right that N never comes home. But because we have the plan for him nobody can say that with any certainty.”
  3. Mr Bainham submits, in my judgment, with great force that if the Judge herself acknowledged the uncertainty of the situation, it was wrong of her to assume the absolute position of the care plan without exploring the contrary and worse it was wrong of her to shut down and ultimately extinguish argument on the point. The explanation, he submits, is that the Judge became distracted by N’s position to the point where she felt it her responsibility to promote it over M’s. In my judgment, there are many examples in the evidence of the Judge’s approach becoming less focussed on M’s welfare than it should. At E230, the Judge intervenes in the questioning of the Guardian again and in a lengthy passage she speaks of “competing plans” and sets out forcefully the implications for N if his plan is overridden. Later at E242, still ostensibly in the course of the Guardian’s examination in chief and clearly exasperated the Judge says:
  4. “No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N’s plan.”
  5. The difficulty with that interjection, as Mr Bainham submits, is that no party was suggesting the Judge could or should interfere with the plan. Simply she was being asked to bear in mind the reality that there was credible evidence (counsel refers to it in his Skeleton Argument in detail) that the likelihood was that the plan would never be implemented.

 

[By the time the appeal came about, the LA responsible for N had changed their plan from placement with grandparents to accepting that his needs were such he needed to stay in residential care – the outcome posited by the Guardian and rejected by the Judge had come to pass]

However, more than this, it appears that the Judge just became increasingly exasperated by the position of the Guardian and was unafraid of showing it.

 

  1. It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court’s duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential.
  2. In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.
  3. The criticism of the Judge is really two-fold. Not only, it is said, she shut down consideration of a central issue rendering it impossible to have a fair hearing but, further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.
  4. I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage. What actually happened was the worst of all possible worlds as the point was debated over and over, mainly by the Judge and Ms Hobbs, with no satisfactory resolution.
  5. Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
  6. I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.
  7. The Judge’s frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian’s analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian’s perceived failure of approach. Perhaps a good example of what went wrong is to be found at E245-247. Over the course of those 3 pages the Judge effectively cross-examined the Guardian as if she were representing another hostile party. In my judgment, there and in many places elsewhere the Judge went far beyond clarification or amplification and descended into the heart of the arena.
  8. In her judgment (A33, para 135), the Judge records the Guardian’s recommendation as a final care order and placement order. That is in contrast to paragraph 134 where she said she stood by her recommendations. In my judgment, it is clear that the Guardian was inhibited from explaining her position fully because of the Judge’s apparent hostility. In the end the Judge stated (A41, para174) that “I do not take into account the evidence of the Guardian”. Read literally that is a clear error. Even if she does not precisely mean what she appears to say, she plainly discounted the view of the Guardian. I am driven to the clear conclusion that, ironically, the quality of the Guardian’s evidence was severely diminished by the Judge’s own interventions.
  9. Family proceedings should not be unnecessarily adversarial. One important function of a Judge, in a quasi-inquisitorial jurisdiction, is to help the witnesses give their evidence in a clear and unflustered fashion. Of course, points can be questioned and tested but not, in my judgment, to an extent that a witness is unable properly to fulfil his or her role. This, it seems to me, is all the more so in care proceedings when a Guardian is trying to explain her professional view to the Court. Here, Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.

 

Just to repeat the key passage here

 

“blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.

 

I think over the course of a long career in Court, everyone has the experience of inadvertently exasperating or irritating a Judge and it always makes you feel dreadful.  I had a time practising in the West Midlands, and there were certainly Courts in Birmingham where I would feel apprehensive, nervous and sometimes physically unwell before going in, knowing that the judicial style amongst certain Judges was overly robust  (for those who know, the words “Humpty Dumpty” will ring vividly in the memory) so advocates in Birmingham don’t tend to be thin skinned, but this is unspeakable and unacceptable.

 

[In another part of the country and a very long time ago, I’ve had a Judge throw volume 2 of Hershman’s at me during a hearing. It is quite a thick volume, in a hard cover.  Thankfully he missed and it hit my completely innocent opponent]

The grandparents, who were in person during the hearing, were rightly appalled by what was happening.

  1. Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:
  2. “1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.

3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.

4. The way the Children’s Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional.”

  1. This letter encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N’s care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.

 

Counsel for the Guardian had attempted, during the hearing to draw attention to the problem that was developing, but was given short shrift.  (Has anyone ever been given ‘long shrift’? I wonder idly)

 

The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says “Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………”. The Judge intervenes; “Well, please do not be.” Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265

 

 

The Local Authority stance at the appeal was of interest

 

 Birmingham City Council (LA B) takes a more nuanced approach. But for the factual change of circumstances, to which I will turn, it would have been inclined to resist the substantive appeal. As to the procedural appeal, it indicated it preferred to make no detailed submissions, adopting a broadly neutral position. I expressed mild surprise at that stance but, upon reflection, having heard Ms Julyan SC explain the sensitivities and importance of the working relationship between LA B and the Court, I understand why it does not wish to associate itself proactively with the more severe criticisms of the Judge’s conduct of the case.

 

 

The appeal was granted, the Judge would have directed a re-hearing, but because the position with N had changed, by the time of the appeal the LA were no longer seeking a placement order for M and thus the plan became placement of M with the grandparents. So a happy ending.