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In the pool or not in the pool?

 

This reported case is a Circuit Judge decision, so not binding on any other Judges, but it is interesting and raises a potentially important issue.

C (Interim threshold not crossed) [2019] EWFC B5 (15 February 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B5.html

 

A child C, was 6 1/2 and had lived, for all but four months of his life, with his maternal grandparents, who held a Child Arrangements Order.  C’s cousin, D, was admitted to hospital with fractures to both legs, she being a non-mobile baby.  A police investigation was taking place in relation to D’s injuries. As part of that, the police informed the Local Authority that for a period during the time when those suspicious fractures had occurred, D had been spending time with the grandparents.

 

In the vernacular, the grandparents  (whilst by no means the main suspects for those injuries) were in the ‘pool of perpetrators’   – or were they?

  1. On 8 th October 2018, [the] police apparently advised the local authority that C should be removed from the care of his maternal grandmother and placed with his aunt R, while further and urgent investigations were undertaken.  The grandparents reluctantly gave their section 20 consent to this, feeling they had no option.  The local authority applied for emergency protection orders for D and her brother E on 11 th October, and subsequently care proceedings were issued.  Those two children are subject to interim care orders and are currently in foster care.  HHJ Owens has listed a fact-find hearing to determine the cause of D’s injuries, due to take place in the week before and after Easter, in April 2019.  

 

The LA issued care proceedings for C  (I don’t know that I would have done that, prior to a decision being made about D’s injuries, but the LA were obviously worried that C’s carers may have been responsible for such serious injuries to a baby.  It rather depends on whether that’s a theoretical possibility that they might have been responsible based just on timing, or some evidence that pointed more strongly towards them)

The Court had originally made an EPO and later ICO for C.

 

This was the judgment from a later contested ICO hearing.  It was complicated further because the LA were proposing that C be placed with his father (who was not involved in D’s life at all and thus absolutely not under any suspicion about D’s injuries)

 

#spoiler alert – the title of the case rather gives away the judicial decision, but read on to find out why.

 

An argument deployed at Court was that the Court, faced with a father and grandparents, could apply a private law filter to the case and decide which placement was better for the child in the interim while D’s injuries were being assessed (in effect, a ‘beauty parade’ exercise)

 

The Court, rightly, did not agree. The legal position had to be that the child be with grandparents unless the LA could satisfy the Court that there were reasonable grounds to believe he was likely to suffer significant harm in the grandparents care and further, that the risk of harm was such that C’s safety required separation from the grandparents.

 

 

  1. I have found this application difficult to determine because it was initially presented to me as a simple exercise of my discretion in respect of weighing up the pros and cons of two competing placement options, but, for the reasons I have given, I do not regard that as the correct approach as a matter of law.  I am grateful to all counsel who have shown flexibility in dealing with the issues that were troubling me, but I have received no written submissions about the question of interim threshold, and no evidence or submissions in respect of the application of the welfare checklist.  Because there has in my judgment been inadequate formulation of the nature of the risk that each of the grandparents is said to present to C, there has been inadequate consideration as to how those risks might be contained so as to enable C to continue to be cared for by his grandparents.  The case law is clear that the key to any application for an interim care order in which it is proposed that a child is separated from his primary care givers is proportionality.  I have had no evidence or submissions to enable me to consider whether the course of action proposed by the local authority is necessary or proportionate in safeguarding C’s welfare.

 

Threshold

 

  1. The threshold document is very short on factual detail and does not explain why it is said that C, who it is accepted has never suffered any harm in his grandparents’ care, is at risk of significant harm from either of them

 

  1. Paragraphs one to nine set out the history of D’s admission to hospital and the local authority’s concerns about the care she and her brother E received in their mother’s care. 

 

  1. Paragraphs 10 to 16 concern the grandparents, although there is not a single specific allegation against the paternal grandfather. 

 

  1. At paragraph 10 it is said that E has spent a considerable amount of time in the care of his maternal grandparents.  It is then pleaded:

 

The maternal grandparents have, therefore, had, at the very least, very regular contact and extensive contact with their grandchildren and have failed to protect them from suffering significant harm.

 

  1. There can be no doubt that D has suffered significant harm.  However, this paragraph does not plead when either of the grandparents had regular or extensive contact with D, or in what way they should have acted in order to prevent her serious and significant injuries.  The threshold document does not identify which, if any, of the injuries allegedly sustained by E amount to significant harm.  It is not pleaded in what respect either of the grandparents should have prevented his injuries being sustained.

 

  1. At paragraph 11(a) the local authority pleads that it considers that C would be at immediate risk of significant harm if he returned to the care of his grandparents at this time, because:

 

(i)                  D’s treating clinicians consider that her injuries were inflicted non-accidentally;

(ii)                None of the adults who had care of her or were in contact with her at the time have been able to provide any explanation for the injuries;

(iii)              The paternal grandparents and extended family, are reluctant to acknowledge the possibility of the injuries being inflicted non-accidentally … and show a lack of acceptance around the severity of D’s injuries and the need for local authority involvement with the children.

 

  1. In my judgment, this paragraph fails the President’s test in Re A .  It does not set out why the A + B + C of D’s injuries and the grandparents’ reluctance to contemplate their being inflicted non-accidentally amounts to the X + Y + Z of an immediate risk of significant harm to C if he was in their care.  Within the evidence, I have not seen a specific reference to either of the grandparents suggesting that there should not have been local authority involvement with D.  There is a reference in the first social work statement to the maternal grandmother expressing her reluctance for C to be living with his aunt stating that ‘she had done nothing wrong’ , but if this is what is relied upon, it is not explained why this would mean that C is at risk of significant harm.

 

  1. It is not specifically pleaded whether either of the grandparents was caring for D or in contact with her at the time her injuries were sustained, or whether they were specifically asked to give an explanation or not.  If they were not there when the injuries were sustained I am not sure why they should be criticised for not having an explanation for their cause.

 

  1. If proved, showing a lack of acceptance around the severity of D’s injuries and the need for local authority involvement, is of course a valid concern in general, but in my judgment not on its own sufficient to stand as an explanation that C is at ‘immediate risk of significant harm’ from his grandparents.

 

  1. Paragraph 11(b) includes the statement that ‘one of the adults within the potential pool of perpetrators is the maternal grandmother’.

 

  1. It was repeated to me a number of times in submissions that the grandmother is in the pool of perpetrators’ .  She is not.  A person is ‘in the pool’ only after a finding of fact has been made to that effect.  I understand that an allegation has been made against her within D and E’s proceedings, but findings have not yet been made.  The threshold is for the local authority to prove.  If the grandmother is alleged to be in the pool of perpetrators as part of these proceedings, it is not because she accidentally found herself there, or someone else put her there, it must be because the local authority positively asserts that she had the opportunity and the motive to cause these very serious injuries, and that she was there at the time the injuries thought to have been sustained.  In support of its assertion, and in order for the Court to come to the conclusion that there are reasonable grounds to believe that C is at risk of suffering significant harm from his grandmother, the local authority must spell this out in its threshold document and provide evidence in support. 

 

 

(*On first reading, I thought that HHJ Vincent was saying a person is only ‘in the pool of perpetrators’ if a finding of fact about the injury has been made, but he is saying that actually a finding of fact has to be made that ‘X and Y and  Z are the people who could have caused the injuries to C, if the Court later goes on to find that C was injured deliberately’  – that doesn’t usually arise, because the issue of whether someone is ‘in the pool’ is not itself contentious.  But of course here, and in any case where a child is potentially being placed with family members whom the LA assert may be ‘in the pool of perpetrators’ – the issue really should be whether the LA satisfy the Court that this person is reasonably likely to be  ‘in the pool’ and they are not just placed ‘in the pool’ on the LA’s say so.  The remarks about ‘motive’ are interesting, because there’s barely ever evidence as to motive in physical harm to children.  But of course, it is relevant for the Court to consider a 6 year period of problem-free care of C, the limited time the grandparents would have spent with C and lack of evidence as to say  – substance misuse, anger management, violence, or being overwhelmed or frustrated, because those are the usual causes of physical abuse – it is very rare to see actual evidence of sadistic intent)

  1. I have not found any other evidence within these proceedings to suggest that the maternal grandmother had care of D in the week or so before her admission to hospital.

 

  1. Nonetheless, SW still asserts in her conclusion that ‘MGM is currently in the pool of perpetrators for causing injuries to D and/or failing to protect her’.

 

  1. A perpetrator does not fail to protect, they perpetrate.  The pleaded allegation is that MGM is in the pool of perpetrators. 

 

  1. I am unaware of what is pleaded against MGM in the proceedings concerning D and E, and I accept there may be specific allegations and evidence that puts her in the frame more clearly.  However, I am concerned with C, and the pleaded threshold document in respect of him.  The threshold document does not explain upon what facts it relies to suggest that the grandmother could reasonably be believed to be in the pool of perpetrators, and scrutiny of the local authority evidence in this case does not assist. 

 

  1. At paragraph 12 it is pleaded that D’s injuries are so severe, ‘with no explanation as to causation and no clarity, at present, around the possible perpetrator, that the local authority does not consider that it can be safe for C to return to his grandmother’s care’. Again, this allegation does not explain why it is that the severity of D’s injuries and the fact of the perpetrator remaining unidentified pose an immediate risk of harm to C from his grandmother. 

 

This next paragraph,  it took me a while to work out who “Q” was – it is the mother’s partner.

 

  1. At paragraph 13 it is alleged that the presentation of the maternal grandmother and mother’s presentation at the hearing of the EPO were ‘extremely alarming’.  They were seen to physically and verbally restrain Q by sitting on him and putting their hands over his mouth, while he clenched his fist.  This allegation may well need to be explored further, but whether true or not and whatever the reasons for and the significance of this behaviour is, again, the threshold document does not explain why this means that C is at immediate risk of significant harm from his grandparents. 

 

 

 

In conclusion

 

 

Is interim threshold crossed?

 

  1. I have looked at the threshold allegations carefully. 

 

  1. I have considered all the evidence in the bundle and I have listened carefully to the oral evidence of Y and of the guardian.

 

  1. I am not satisfied that threshold is pleaded with sufficient clarity to set out why it is said that either the maternal grandmother or the maternal grandfather present an immediate risk of significant harm to C.  I have reviewed all the evidence and I am not satisfied that there are reasonable grounds for believing that on the date protective measures were taken, C had suffered or was at risk of suffering significant harm as a consequence of the care given by his grandparents, which or that the care given by them was not the level of care one would reasonably expect a parent to give.

 

  1. I do not accept that asserting repeatedly that the grandmother is in the pool of perpetrators with respect to D’s injuries, and being concerned that there is insufficient information and clarity around the circumstances of D’s injuries is sufficient to form the basis of a threshold allegation against the maternal grandmother. so far as C is concerned.  If the local authority wishes to put forward a positive case in respect of the maternal grandmother then it is required to set out in the threshold document what facts are relied upon and then to provide the evidence in support of its contention.  They have not done so.  The evidence is at best equivocal.  While at an interim stage there is of course no requirement to prove the section 31 final threshold is crossed, there must be evidence to satisfy the Court that there are reasonable grounds to believe the section 31 circumstances exist.

 

  1. There is no single specific allegation against the maternal grandfather in the threshold document.

 

  1. All the remaining allegations are generalised and none of them provides an explanation as to why it is said that the care that has been given to C or is likely to be given to him by his grandparents should he return to their care, is below what one would reasonably expect from a parent, and why it would put him at risk of suffering significant harm.  

 

  1. Because I do not find interim threshold to have been crossed, I have no jurisdiction to make an interim care order in respect of C and he should in my judgment be returned to his grandparents’ care.

 

  1. In reaching this conclusion I am not suggesting that the local authority’s concerns about the grandparents are baseless, and I accept that SW and the guardian have genuine concerns about the grandparents’ ability to work co-operatively with them, their insight and acknowledgment of the severity of D’s injuries and the existence and impact of domestic abuse upon their grandchildren.  However, the case law is clear, the local authority must meet a high standard when seeking to justify the continuing separation of C from his grandparents.  I must only consider making an order which interferes  with their right to a family life where the strict statutory grounds are made out.

 

 

 

 

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Assessing family members where parent doesn’t put them forward or objects

 

In this case, Cobb J was asked to determine an interesting question. In a set of care proceedings, if the Local Authority were aware of extended family members but the parents didn’t put them forward as carers  did the LA have a duty to assess them?  And, given father objected to it, did the LA have the power to talk to the family without his consent?

 

RE H (Care and Adoption : Assessment of wider family) 2019

 

https://www.bailii.org/ew/cases/EWFC/HCJ/2019/10.html

 

Set-up

 

In public law proceedings under Part IV of the Children Act 1989 (‘ CA 1989 ’), social work assessments are commonly undertaken of members of the subject child’s wider family or friends who are proposed as potential carers in the event that the child cannot be safely placed with parents.  The issue which arises in this case is whether a local authority is required, by statute or otherwise, to notify wider family members of the existence of the subject child, and/or assess them, when they are not proposed by parents as potential alternative carers, and where the parents (or either of them) specifically do not wish the wider family to be involved.

 

In the particular case, the child was 5 months old, there had been two previous children removed. The parents were fighting the case and striving to care for the child. There was a long history of parental substance abuse and alcohol abuse and some allegations of domestic violence.

Some of the extended family knew of the child’s existence, some didn’t. None were put forward by the parents as potential carers if the parents were ruled out by the Court.

The LA  Agency Decision Maker (who decides whether the LA can put forward a plan of adoption ) wanted to know whether any of the extended family were an option to care for this child.

The father said that none of his family would be in a position to care for the child, and he did not want them burdened with knowing that there was a child when they could do nothing about it.

 

So the LA wanted to talk to his family to see if any of them could care for the child, father objected to them doing so.

 

There were a few relevant authorities, but most of them dealt with there not being a duty on the LA in a case where the child is relinquished (given up for adoption) to approach family members or rule them out (although if there’s a genuinely realistic option it ought to be explored).  The Court here was being asked to decide whether to extend that principle from agreed adoption to non-consensual adoption cases, or whether different principles applied.

It being a Cobb J judgment, it contains a beautiful and clear analysis of all of the pertinent law and guidance.  It is a short judgment, so I recommend reading it.

 

I’m going to race ahead to the conclusion though.

 

Firstly, and importantly, Cobb J considered the  submissions of all parties that there was an assumption of a duty on a LA to explore family members who were not actively being put forward  (where they did not know about the child) and had some doubts that the case law established such a duty.

 

The submissions of all the parties proceeded upon an assumption that the local authority has a general duty to assess the wider family in these circumstances.  In this regard, I was referred to the decision of Theis J in Royal Borough of Greenwich v Adopters [2018] EWFC 87, in which she said this at [11]:

What this case has highlighted is the critical importance of a local authority having effective systems in place from an early stage in care proceedings to ensure that the wider maternal/paternal families are considered as possible placement options for the children . Whilst it is recognised that the parents should put forward any names they want to be considered, that does not absolve the local authority of the enquiries they should independently be making . The continued retort by the local authority that the parents had failed to put anyone forward failed to recognise these are parents who failed to provide the basic care for their children or provide basic co-operation within the care proceedings, this local authority should have undertaken their own enquiries . ” (emphasis by underlining added).

16.               I do not read Theis J’s comments as establishing, or specifically referring to, any free-standing duty to assess wider family who are unaware of the existence of the child.  Indeed, the specific issue arising for determination here caused me to question from where counsel’s assumption about the obligation derives, how far it extends, and what policy or other guidance informs how far it should be applied. 

 

Cobb J looked at a piece of guidance on Initial Viability Assessments, published by the Family Rights Group.  (I’ll declare an interest here, as I had a teeny-weeny part in the drafting of this. Honestly, teeny-weeny)

 

Important guidance published in February 2017 by the Family Rights Group (FRG) (‘ Initial Family & Friends Care Assessment: A Good Practice Guide ’), with endorsement from, among others, the Family Justice Council, Cafcass, Association of Directors of Social services, and the Association of Lawyers for Children, makes this point somewhat more strongly (para.1.1, page 5):

“Where a child cannot remain in the care of their parents, research has consistently found that children placed in kinship care generally do as well, if not better, than children in unrelated foster care, particularly with regard to the stability of the placement. So it is essential that if a child may not be able to live safely with their parents, practitioners identify potential carers from within the child’s network of family and friends and determine whether they will be able to provide safe care to meet the child’s needs until they reach adulthood. ” (emphasis added).

27.               The FRG authors speak further of the importance of enabling wider family members to contribute to decision-making, including deciding when the child cannot remain safely with their parents (para.2.2, page 12):

“Where a child cannot live with their parents, it is the duty of local authorities to work in partnership with parents and relatives to identify whether there is anyone within the child’s network of family and friends who can provide the child with safe and appropriate care . Parents may suggest potential alternative carers and some family members may come forward themselves once they become aware there is a possibility that the child may not be able to remain in the parents’ care. In some cases local authorities may be faced with a large number of potential carers. In these situations, it is helpful to ask the parents and family and kinship network to identify a smaller number of carers who they feel would be most appropriate to be assessed to care for the child.  Family group conferences are not a legal requirement; however, they are recognised as a valuable process for involving the family early so that the family can provide support to enable the child to remain at home or begin the process of identifying alternative permanence options.” (emphasis by underlining added).

 

The conclusion

 

[I am such a sad geek that I was actually on tenterhooks here!]

 

Conclusion

44.               The simple but not unimportant issue raised in this case has given me cause to conduct a reasonably widely-drawn review of statute, guidance and case-law. Drawing the strands of this review together, I have reached the conclusion that I should accede to the application of the local authority.  I propose to give the father an opportunity to inform his parents himself of the existence of H.  He should be supported in this exercise by a social worker or by the Children’s Guardian, should he ask for it.  If he chooses not to notify his family himself, I shall authorise the local authority to do so.

 

First, repeating a point made earlier (see [22]), none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here.  However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare .

 

Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child. 

49.               In exercising that broad discretion, I would suggest that the following be borne in mind.  There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child.  There will be cases where cultural or religious considerations may materially impact on the issue of disclosure.  There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation.  But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent.  Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be “fully explored” (see [28]).  The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that “cogent and compelling” grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound.  This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child’s interests (see Re B (A child) and Re B-S ).

50.               As the DfE and FRG and associated guidance makes clear (see [25]-[27] above), good social work practice requires the early identification of family members who may be able to provide safe care to meet the child’s needs, and/or contribute to the decision making in respect of the child where there are child protection or welfare concerns; the FRG rightly refers to a “duty” on local authorities to work in partnership with parents and relatives.  It was this exercise which Holman J in Z County Council v R [2001] described when, at p.375 ibid., he referred to the fact that “there should normally be wide consultation with, and consideration of, the extended family; and that should only be dispensed with after due and careful consideration ” (my emphasis by underlining).

 

 

The line of ‘relinquished’ baby cases discussed above ([33] et seq .), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth.  In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child’s advantage. 

 

 

 

So not a duty in the ‘statutory’ sense, but unless there are cogent and compelling reasons to not explore the extended family  /  due and careful consideration of the reasons not to explore them, the Court should be very careful about proceeding with a plan of adoption.  That does seem that it is not as simple as the Local Authority saying “well, the parents didn’t put anyone forward”

 

The judgment doesn’t really deal with the power the LA has to share information with the wider family (after all, approaching Auntie Beryl to see if she can care for Little Timmy is inherently telling her that there are reasons why mum and dad aren’t able to) and the GDPR aspects.  In this case, that’s solved by the Court authorising it, and it may be that this is the best solution – to float that there IS an Auntie Beryl who the LA would want to explore and either seek parental consent to do so or have a direction from the Court.

 

 

Bullish but not bullying? UNDER PRESSURE

Couldn’t decide between my two titles here, so you get a job lot.

 

I do like a case name that tells you something about the nature of the case, so G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019) told me it was probably going to be worth a read.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

 

It involves an appeal from Sheffield Family Court about the decision to make Interim Care Orders involving two children (both said to be young, and one specified as being four). The children had been removed into Police Protection following an alleged fracas where mother had gone to the father’s house after father had reportedly kept the four year old for longer after his week’s holiday contact than had been agreed. The police had arrested mother and members of her family.

 

There was said to have been some history of domestic abuse between the parents, both making allegations against the other.

 

The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father’s lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M’s poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January

 

The case was listed for an Interim Care Order hearing, against the backdrop of the Police Protection period ending that day and thus a decision needing to be made. The Court called the case in, asked for people’s positions, gave some views, allowed a brief period for instructions to be taken, and the mother did not contest the making of the Interim Care Orders.

 

[In fact, she consented, but it is now permissible to appeal against a consent order – that did not used to be the case, but the law changed following some high profile big money ancillary relief cases – ie  CS v ACS 2015  ]

 

My summary above doesn’t quite capture what happened though, hence the appeal. The appeal was on the basis that the views expressed by the Court went beyond robust case management and into undue pressure and that the mother’s decision not to contest the making of Interim Care Orders was as a result of feeling that she would not get a fair hearing.

 

(I note that mother’s counsel, Mr C,  is said to be 2016 call, which means that he was relatively junior and might also mean that he was in his early twenties, although of course some people join the Bar later in life.  Part of the argument at appeal was whether he was in any way to blame, which he was not. I point those things out merely because they MAY wrongly have given the impression that he could be steam-rolled in a way that a barrister with 20 years call would not have been. )

 

Here is a flavour of it – the judgment gives a pretty thorough blow by blow account if people want to read it

 

JUDGE: Yes. Mr [C], what evidence do you what to hear?

 

Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.

 

JUDGE: Oh, it’s got to be heard today. As you know, the PPO runs out.

 

Mr C: Well —

 

JUDGE: — and if it is heard today I shall certainly make findings that your client will be stuck with.

 

 

And

 

 

JUDGE: I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings – which inevitably I will, because something happened at the house on the 21st of January – she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is – is very risky for her and I – I say that so that no-one’s left in any doubt that if I hear the evidence, which I’m more than willing to do – my list is empty for this afternoon – I shall make findings and she’ll be stuck with them.

 

Mr C: Well, in light of that indication, your Honour, I will probably have a further word.

 

JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn’t have done. but I don’t know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but this is a case where, inevitably, I’m going to make findings, and it doesn’t take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep – that that is significant harm. I don’t think there’s any question about it.

 

Mr C: Well, your Honour, mother’s position would be that it was a – a choice between two difficult decisions that evening —

 

JUDGE: Oh, nonsense.

 

Mr C: — and that she had to take steps to safeguard the welfare of her daughter.

 

JUDGE: No, that’s not the way that you go around it, Mr [C], If that is the preposterous proposition you’re putting to me, it’ll fall on deaf ears.

 

 

And

 

JUDGE: Yes. Mr [C], I’m doing this to try and assist your client, not for any other reason, so it’s up to her.

 

Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a – into a decision on that.

 

JUDGE: Yes. Well, I must say, father’s taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren’t and it would have impacted on my decision, but father’s taken the only standpoint – obviously I’m not making any findings against him because he’s accepted the inevitable.

 

It’s quarter-past now. I’m very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.

 

MR [C]: Yes, your Honour.

 

JUDGE: Right, it’s quarter-past now, I’ll give you – no later than 25 past.

 

I don’t know if mum could possibly have persuaded the Court that her actions in going round to father’s house to get her child back late at night were justified and that in any event, it would not be proportionate to put two children in foster carer as a result of that, but it is an argument that she was strongly pressured into not making.

 

At the appeal, the mother’s case was

 

 

14.Ms Helen Compton’s distilled submission to us is that the mother was deprived of a meaningful opportunity to oppose the making of the orders. The judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

 

 

At the appeal, the Local Authority put the case in this way

 

“Following her discretionary case management powers and with a clear view on the Overriding Objective the learned judge informed the Mother and her Counsel that there was time for the Court to hear the matter as a contested hearing that afternoon and of the possibility of threshold findings being made against her.

 

However firm the learned judge may have been, it did not amount to duress and it was incumbent upon the Mother’s legal representatives to raise these issues with the judge. In the event that judge refused to hear the case at all a judgment should have been requested. In the event that there had been a contested hearing, the Court would have provided a judgment (probably ex tempore) and clarification could and hopefully would have been requested. This matter was agreed and no judgment requested.

 

The learned Judge did state a view on the initial application but this was within her discretion to do. The Learned Judge also provided the Mother with time over lunch to take instructions, further time when Mr C asked for it and stressed that she was willing to hear the case that afternoon. No application was made by the Appellant Mother to seek an adjournment or agree an Interim Order pending listing this matter for a contested interim hearing. This exercising of the Judge’s case management powers did not amount to a breach of the Mother’s Article 6 and 8 Rights.

 

Both parents attended at court represented, the Mother by both Counsel and instructing solicitor. It is perhaps surprising that neither of the Mother’s fully qualified legal team sought to challenge the Judge in the event that they felt the Judge was being intimidating or exerting duress and express their views to that effect at the time.”

17.In her submissions to us, Ms Ford accepts that the transcript shows the judge to have been bullish, but distinguishes this from bullying. She does not accept that the mother was under duress. Professionals are used to judges expressing firm views and they should be able to deal with it, and where necessary stand up to pressure from the bench. There is nothing improper in a judge advising a party of the consequences for them of adverse findings being made at an interim hearing. Ms Ford accepted that one interpretation of the transcript supported the complaints now made; in the end she was not able to suggest any other possible interpretation.

 

The Court of Appeal weren’t very taken with the Guardian’s stance on appeal

 

 

20.Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one

 

 

 

 

 

Conclusions

 

 

 

 

22.The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved. The court is under a duty to deal with cases expeditiously and fairly and to manage them actively in ways that include “helping the parties to settle the whole or part of a case”. See FPR 2010 1.1(1), 1.1(2)(a) and 1.4(2)(g).

 

 

23.Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

 

 

 

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24.Measured against these principles, and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court’s powers.

 

 

25.This was an urgent application, which the judge rightly appreciated had to be decided that day. As she said, she had time available. It was a matter for her, given the practical constraints, as to whether to hear oral evidence: if she had been considering making a short-term holding order I would not have criticised her for not doing so, with any evidence needed to justify a longer-term order being taken on a later date.

 

 

26.However, that is not what happened. The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the Guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel. Before Mr C could even manage to tell the judge that his instructions were to contest the order she told him that “… if it is heard today I shall certainly make findings that your client will be stuck with.” The only conclusion that the mother and her advisers could draw from this and similar statements (“very risky for her”; “a very very precarious position”; “inevitably, I’m going to make findings… – that that is significant harm. I don’t think there’s any question about it.”; “not… without some consequences.”) is that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. The judge then isolated the mother by saying, before learning the position of the Guardian, that “this application is bound to be supported by the Guardian”. When Mr C attempted to put a small part of his client’s factual case, he was met with derision: “Oh, nonsense”; “preposterous proposition you’re putting to me, it’ll fall on deaf ears.” Counsel for the local authority then intervened to say that her social worker couldn’t be questioned about events before she was allocated and that she would question the mother about why she waited until 36 hours after reporting matters to the police before going to the father’s house. Before adjourning at Mr C’s request, the judge further isolated the mother by saying that “the father’s taken the only decision, in my view, that he should take, … obviously I’m not making any findings against him because he’s accepted the inevitable.” Finally, she made an entirely gratuitous statement that “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens.” Whether or not that was an empty threat is beside the point.

 

 

27.This material amply substantiates the appellant’s case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity. This ground of appeal succeeds. It is unnecessary to go on to consider the other grounds.

 

 

28.I also regret that the submissions made by the local authority, either supported or not challenged by the other respondents, show a failure to understand the nature of the overriding objective or the requirements of a fair hearing. The judge’s approach went far beyond “firmness” and cannot possibly be described as “assisting” the mother. Similarly, I would reject the suggestion that the fundamental unfairness of the hearing could have been cured by a more assertive response by the mother’s legal representatives. After what happened in the first part of the hearing, it is difficult to see how a fair hearing could have taken place even if the mother had maintained her opposition. The submissions we have received from the respondents show why the appeal needed to be heard. The consequence will be that the local authority’s application for interim care orders will be heard afresh, and not as an application by the mother for the discharge of existing orders.

 

 

29.A further matter, which arose during submissions, requires comment. The judge’s repeated references to the mother being ‘stuck’ with findings is to my mind one of the causes of concern. However, both Ms Compton and Ms Ford told us that this was a warning that in their experience is often given by judges at interim hearings. Neither sought to argue that there is anything improper about this. I do not share that view and I agree with the observations of Moor J on this point.

 

 

Mr Justice Moor, the second Court of Appeal Judge, reminded us that judicial decisions about matters at interim care order stage are not findings of fact, but decisions that on the section 38 standard that there are reasonable grounds to believe (at that stage) that such and such has occurred. That argument of course cuts both ways – it is a lower standard of proof that the Local Authority have to reach (on the balance of probabilities are there reasonable grounds to believe that this happened versus on the balance of probabilities is it more likely than not that this happened) but on the other hand such judicial decisions and views are not set in stone and should not be used in this way to discourage a parent from testing the evidence.

 

Mr Justice Moor:

31.I agree, and add the following in relation to one aspect of the matter.

 

 

32.During the course of the hearing, we were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute. The implication was that these findings would then stand for all time. Indeed, Ms Ford, on behalf of the Local Authority told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

 

 

33.It is important to remember that there is a fundamental difference between sections 31 and 38 of the Children Act 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-

 

 

 

“A court shall not make an interim care order or supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)”.

34.Section 38(2) does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, at an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing. Accordingly, we consider that courts, if they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.

 

 

35.If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

 

 

[If I recall correctly, the Courts have confirmed that this is the case even at a finding of fact hearing, that the findings made are effectively a section 38 finding and that it is vital at the conclusion of the case for the Court to actively consider and determine whether to make the same findings to the section 31 standard. Don’t quote me on that though, because I can’t locate the source authority – I just remember having been surprised to read it at the time. Fact findings always FEEL like a section 31 exercise, not an ‘are there reasonable grounds to believe this?’ exercise]

 

The Court of Appeal continued the interim care orders pending the case being reheard by a different Judge.

The right tool for the job

 

Immigration law is complex. It involves knowledge of multiple jurisdictions and the political and cultural circumstances of those countries, the statutes, regulations and case law providing interpretations of those statutes and regulations, and it requires confidence and knowledge in advocacy as to what the tribunal you are appearing before is looking for.

I wouldn’t do a contested immigration final hearing. I’d be very out of my depth. Just having skill as a lawyer, and experience of being in Court isn’t enough.

 

The post-script to this family law case, involving an allegation that a child of just seven weeks old was admitted to hospital with serious burns and a mother who alleged that the injury was caused by a friend of hers, Y, who had spilled tea on the child, but Y could not be located to give evidence  (it appears that Y may have been an overstayer, so there’s some immigration angle) , really says all that needs to be said.

 

K & C (Children: Finding of Fact), Re [2018] EWFC B85

https://www.bailii.org/ew/cases/EWFC/OJ/2018/B85.html

 

Families are the building blocks of our society and in Public Law Proceedings, the Courts deal with some of the most vulnerable families. Professionals who work in the Family Justice System are highly skilled specialists who often work on complex cases involving serious intricate forensic issues. Their skill set and professional standards are essential for those who represent the parties in Public Law Proceedings. It is incumbent on those representing the parties facing serious allegations to ensure they have seen, read and understood all the evidence in the case and to ensure that the party who they represent has been able to participate meaningfully in the court process.

I note that in this case, neither the parents nor their Counsel were aware that there were coloured photographs of the injuries that were commented upon in detail in the written report of the jointly instructed expert. Until she was partway through giving oral evidence, the Mother had never seen the transcript of her police interview. Despite being in possession of Y’s photograph, the mother’s solicitors failed to mention this to the local authority or their own private investigator, resulting in much embarrassment when the wrong person was witness summonsed and attended Court. Counsel for the parents have both informed me that they are immigration specialists, consequently the other professionals have had to work very hard to make sure that the hearing could be fair and effective. The mother’s evidence has taken much longer than necessary, which can only have made it more stressful than it needed to be. There is no room in the Family Court for such a lack of care and lackadaisical approach to case preparation.

Research by ALC on “Fire-eating Courts” (sorry, “Settlement Conferences”)

 

 

We are still waiting for the Ministry of Justice research on the settlement conference pilot.  I think we’re two years overdue on the publication of the research into the impact of the legal aid cuts, so I shall not hold my breath on that research.

 

The Association of Lawyers for Children, have done their own research, conducted by Dr Julia Brophy. To be fair, I will caveat the research with these three propositions

 

  1. The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
  2. The research is what we call ‘qualitative’ – as in it is asking people for their experiences, rather than the mooted MOJ research which has access to Court statistics and can say how many Settlement Conferences happened, how many achieved an agreed outcome, what the cost savings of not going on to final hearing were and time savings for decisions for children versus the ones that didn’t, and just built in an extra hearing
  3. The sample size of 19 respondents is small (and as the research says, was self-selecting, in that it was people who responded to the ALC’s request for volunteers, so perhaps that tends to select those who are unhappy rather than those who were happy)

 

(The fire-eating Court, in the title, is a callback to my blog about the risible conference where The Powers That Might Be Giants tried to placate legitimate concerns about Settlement Conferences with fluffy responses telling us we were all just silly)

https://suesspiciousminds.com/2016/12/21/fire-eating-pilot/

 

I’ll give my own caveat for this post – I was extremely dubious about Settlement Conferences and my own Courts have been a pilot.  I remain very dubious that a national roll-out would be advisable – but I’ve had some positive experiences of Settlement Conferences, as well as one that was sadly ghastly and ended with people in tears. My own experiences would be more positive than the sample size in this research  (but even then, I’d say that just like FDAC it is the skill and approach of the individual Judge rather than the idea and philosophy itself that makes the difference between success and failure.)  I have certainly not observed the judicial pressure spoken of in the research, but have been told about it by lawyers in other parts of the country and I know it happens.

 

The ALC research, even with those caveats is damning.  In every regard

 

http://alc.org.uk/uploads/Settlement_Conference_Research_Report_.pdf

 

 

Some of the things that really struck me

 

The Protocol Principles (2016) were not applied consistently by judges. Variation in approaches

covered the delivery of a preamble, attention to consent during the procedure, pressure on

parties and advocates, and approaches to the involvement of advocates.

 

Very few judges made explicit their criteria for selecting cases; almost all respondents (17/19)

did not know how or why their case(s) had been selected. In one court all cases were selected,

in others, respondents thought selection was random or idiosyncratic.

 

Some respondents (8/19) had not observed imposition of the procedure on parties but there

were concerns that once a judge presented the procedure as ‘routine’/the ‘norm’, it becomes

very hard to resist.

Similar numbers (7/19) reported the procedure had been imposed on a party. Examples

included parents with limited capacity, some who did not really understand the proposal and

some reported as bewildered by the procedure

 

A small number of judges were variously described as brutal, harsh, blunt and insensitive with

parents, with the latter effectively backed into a corner.

 

A minority of judges were described as not exerting pressure on parents to concede an order;

most however applied some pressure: it could be direct and forceful – or it could be subtle but

potentially disarming – or it could be both.

 

Some parents were unhappy about the approach of some judges in trying to persuade them

to agree to an order; some left the court in distress, some reported feeling bullied, threatened,

intimidated and coerced.

 

Overall, 5/19 respondents experienced at least one procedure where it had not been possible

or it was difficult to give a client advice during the procedure

 

The picture is mixed; very few respondents (2/19) said unreservedly, the procedure was fair;

5/19 respondents said it had not been fair.

Many (8/19) had mixed experiences; it had been fair in some cases but not in others. A small

number (3/19) said while procedures were fair ‘in the main’, there were pockets of concern

and thus caveats.

 

Overall, most advocates said a properly conducted IRH could have reached the same result but

restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/

no time for judicially led discussion, negotiation and party reflection.

 

There has been little discussion or analysis of issues of power and due process implications29 when

a judge bypasses an advocate and negotiates directly with a vulnerable parent about complex and

difficult issues, some of which may be issues of evidence30. For some parents who are subject to public

law proceedings, issues of ‘learned helplessness’ may influence their responses to a judge31. They may

also not fully understand that having agreed to try the procedure, they nevertheless are free to leave at any point; they may lack courage/not know how to call a halt during what may be an intense, judge led discussion. They are likely to need special preparation where there is a potential for them to agree to an order that results in the permanent removal of a child and which order will not be open to future challenge or appeal.

8 There is little/no evidence of robust research – or proposed research about whether/how parents –

often with profound problems, are prepared for settlement conferences, whether they fully understand and are able to engage in the procedure on equal terms, whether they feel it was fair and what they understand about the benefits of a hearing and due process.

9 It would be naïve to suggest that the impact on parties and parents in particular, of judicial

utterances is negligible – that would be to deny the inherent power held by judges by virtue of their

role and status, and to ignore the profile of parents subject to care proceedings.

 

 

For example, one advocate discussed a settlement conference which started exactly like a hearing, the judge then asked the local authority and the guardian to leave the room, the mother and her advocate remaining. Seated beside the mother, the judge told her that her case was “totally unrealistic”. The mother broke down and ran out of court in tears. Her advocate followed to take further instructions.

 

[10/25] respondents raised concerns about the approach of judges. In one case a judge was described as blunt, insensitive and brutal with parents, conveying their prospects of success harshly, and in circumstances where the dispute was about the proposed adoption of the child. Another advocate compared two completely different approaches:

one judge talking very softly to the parents, explaining patiently and clearly what sort of order he

would make and why; another judge did not consider the parents’ feelings or difficult circumstances in

delivering his view as to likely outcome.

The first judge was described as no less child-focused than the second judge however his delivery was

of a different calibre: calm, patient and respectful, trying to get the parents to focus on the best interest

of the child – albeit his message as to the likely order was “clear and firm”. The second judge’s style

with parents was “quite blunt, and insensitive”. This respondent continued:

“where [a] case concerns placement for adoption, what parent is going to agree to adoption?

But my experience of [this settlement conference] was that it was quite brutal really. [The judge]

conveyed his view on their prospect of success, harshly – and the parent’s advocate wasn’t

impressed with that either. [He] also felt it was insensitive.” [R-2]

 

 

This respondent along with others said a lot of parents attending settlement conferences are likely to have learning difficulties or were otherwise highly vulnerable, and it was a cause for concern:

“It feels unfair that quite often they’re being encouraged to settle [although that is not their

instructions…] and if they don’t want to settle they have right to hearing …notwithstanding [any

advice as to] likely success. So, I find it difficult that a lot of the people going to these settlement

conferences and settling are parents who have learning difficulties [and who] would sometimes

benefit from having their case heard and getting their views, wishes, feelings across…I would say the majority of cases [I] have dealt [in settlement conferences] concern parents with learning difficulties”. [R-4]

The respondent was asked if he had any ideas for support to mitigate effects for vulnerable parents:

“The difficulty is, the whole process is quite overwhelming for them; a lot of them find meeting

judge, and judge sitting next to them also quite overwhelming. It seems that sometimes the

procedure results in [an agreed order] because the parent is sometimes just completely taken

aback by it.” [R-4]

 

A minority of respondents [4/19] said in their case(s) the settlement conference judge had not applied any pressure on parties

One respondent spoke of a case in which a mother had been strongly encouraged to accept the LA plan at a Settlement Conference, did not do so, and then at final hearing secured the child living with them. That’s just a horrible thought, that if the mother had been less able to stand firm, she would have lost her child when testing the evidence the right thing was for the child to be with her.

Overall, nine respondents reported settlement conferences where clients complained about the

approach and behaviour of a judge: some expressed it at the time, for example, by leaving the court, some complained to their advocates about feeling bullied, coerced, intimidated, cornered, and not listened to by the judge.

One parent said bullying by the judge was aimed at getting him to “cave in”. Some of these

experiences were confirmed by advocates. For example, in one case where a parent reported being

bullied by the judge, the respondent concurred with the client’s appraisal of the judge: ‘it had felt quite abusive at times’ [R-16].

 

About a third of advocates were not confident of continuous consent from their client; too

much pressure was exerted by judges and indications of distress and other signs of client

anxiety were not picked up by the judge as indicating, at least, a need to revisit ‘consent’ or

as indicating consent was effectively being withdrawn/the procedure should stop.

 

Just two respondents (2/19) had no concerns about fairness in the procedures they attended

 

 

As I said, even with all of the caveats, this is a damning report.

 

So I expect the MOJ report, when it arrives, to focus on savings and roll it out nationally.

No more ‘business as usual’

 

 

We have our first View from the President, from our new President.

 

Here it is

https://www.judiciary.uk/wp-content/uploads/2019/01/amcfview-1.pdf

 

A few working groups established, and due to report by Easter 2019 (Public Law, Private Law and Experts)

A lot of the speeches that the President has given are about work volumes and well-being, and that’s the focus for this post.

 

In the meantime, every professional engaged in work in the Family Courts must, I fear, continue to experience the adverse impact of the high volume of cases. I have, on every occasion that I have spoken about these issues, stressed my concern for the well‐being of social workers, lawyers, judges and court staff who are conscientiously continuing to deliver a professional service in a timely manner despite the increase in workload. Other than doing what I can to understand and address the underlying causes (which will obviously take time), there is little that I, as President, can do to relieve the current pressure. It is, however, I believe right for me to say publicly in this ・View・ something which I have said on some occasions to some gatherings in the past few weeks. In these highly pressured times, I think that it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ・business as usual・. For the time being, some corners may have to be cut and some time‐limits exceeded; to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn‐out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges.

I would encourage local dialogue between the legal profession and each DFJ on this topic so that some parameters may be agreed as to what is and is not sensible or acceptable in terms of working practices during the next 6 months or more. The following are no more than suggestions for what might be discussed and agreed:

‐The earliest time of day when the court can reasonably be expected to sit;

‐The latest time of day when the court can reasonably be expected to sit;

‐The latest time in the evening, and the earliest time in the morning, when it is

acceptable to send an email to another lawyer in a case or to the court;

‐Reducing the components to be expected in a ・Position Statement・ to the

minimum required (for example simply one side of A4 using bullet points) on the

basis that a fuller oral position can be outlined at court if required. Other possible topics for agreement may well present themselves to those of you who are regularly undertaking this work.

As family lawyers and judges it is, for me, a total ・given・ that you will go the extra mile for the sake of the child, the parties and the system when this is needed. You will, I am sure, continue to do so. My present purpose is to acknowledge publicly that we are currently in a situation that cannot be accommodated simply by working beyond what can reasonably be expected every now and again. As Sir James Munby rightly observed before 2016, when declining the encouragement of others to require the courts to make an extra effort to achieve the 26week deadline, the system then was working flat‐out. That was before the 2016/17 increase of 25% in workload. In terms of considering just what the system can sustain recalling Sir James・ words at this stage is timely. My aim in now saying what I have is to give each of you, as the psychologists would say, ・permission・ to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected from those appearing before and working in the courts.

 

There will be some interesting discussions arising out of this.  (For my part, I would love to see an end to Position Statements that say the same as the statement filed two days before, or ‘instructions will be taken at Court’ or ‘my client has not yet provided instructions on this issue’  – as all of that adds nothing)

Can the genie of ‘always available by email’ be put back in the bottle? I’m not sure, but I think it would be a very healthy debate to have.  It savagely impacts on quality of life when people can never switch off from this work, which is emotionally draining and challenging in and of itself, without never having any down-time from it.  I applaud the President for moving away from font sizes, margins and the welfare of the bundle is paramount approach, and thinking about things other than process.

 

Separating twins

 

 

There’s a notorious study from the 1960s, in which an American organisation, the Louise Wise Adoption Agency under the request of a child psychologist, Peter Neubauer, placed twins in separate adoption placements, with a number of different twin pairs, so they could be followed up by psychologists in later life to see whether they, as adults, had similarities (which would give credence to nature / genetic factors being the most dominant) or differences (which would give credence to nurture/environmental factors being the bigger influence on children). It’s the sort of thing that makes us shudder now.  And rightly makes us think that separation of twins is a huge, huge life-changing decision, never to be made lightly.

 

This case isn’t as bad as that, because the separation came about more by a combination of incompetence, lack of thought and dogma that adoption is the best thing always even if it means splitting twins, rather than just carelessly using children as unwitting experiments, but it is still bad.

 

Readers may remember Keehan J opening a can of judicial whup-ass on Herefordshire just before Christmas. After I finished writing THAT post, I found this judgment, which….well. You’ll see.

BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/76.html

 

1.I am concerned with two children, BT and GT who are twins who were born in 2010. It is almost impossible to imagine the circumstances in which it would be considered appropriate to separate twins and place them for adoption by different prospective adopters. This is, however, what occurred in this case and I have before me an application by a couple, whom I shall refer to as A and B, to adopt BT and an application by a single carer whom I shall refer to as C, to adopt GT.

 

 

2.As I shall set out in some detail, I am satisfied and find that the court is in the position of considering applications to adopt the twins in two separate homes because of the incompetence and serial failings of the local authority, Herefordshire Council, and the egregious behaviour of some of its former staff.

 

  1. The failings of this local authority have been utterly appalling. Whilst I accept the assurances of the director of children’s services and of the assistant director that significant and substantial reforms will be made and effected, no child should ever again be cared for in the manner BT and GT have had to endure at the hands of this local authority nor suffer the woeful lack of rational care planning. Further no prospective adopter should ever again have to endure the treatment meted out to A, B and C in this case.

 

This was a case in which twins born in 2010, were made the subject of Care Orders and Placement Orders (authorising them to be placed for adoption) in 2015 – the plan approved by the Court at that stage being that the Local Authority would search for an adoptive placement for the twins together for nine months, and if one was not found to search for a long term foster placement for them together.

 

 

 

 

22.On 19th March 2015 HHJ Hooper QC made all five children the subject of care orders and made placement orders in respect of BT and GT. Their court approved care plans provided for them to be placed together with a search being made for nine months for an adoptive placement and if the search was unsuccessful the following three months would be devoted to seeking a long-term foster placement for them together. There was no question of the local authority proposing, still less the court approving, a plan for the twins to be separated and placed separately whether in adoptive placements or long-term foster care.

 

 

23.On 10th April 2016, however, a team manager made the decision to place the twins separately for adoption. This plan was endorsed by a LAC Review held the following day. I shall return to consider these decisions in greater detail later in this judgment.

 

We aren’t given a huge amount of background as to the decision to make Care Orders in 2015. We know that the twins father was convicted of multiple sexual offences against children and that he is also serving a 21 year prison sentence. (para 5) and we know that 5 children were removed from the mother and made the subjects of Care Orders and that there were issues of neglect, domestic abuse and alcohol abuse.(paras 17-22)

 

The Judge, Keehan J, was faced at this hearing, with applications by two different adopters to adopt one of the twins each. By the time of the hearing, the children had been in those placements for over a year. The Judge had to decide whether to grant the adoption orders, meaning that the two children would permanently live apart, or to refuse them and move the children from those separate placements into presumably a foster placement together. Understandably the Court was more than vexed at being placed in this position after the event, when it would have been very unlikely to have sanctioned separation of the twins in the first place.

 

Let’s look at why that happened.

 

As we know, the social work team manager took the decision on 10th April 2016 that the children should be placed separately for adoption. Their foster placement, a joint one, broke down on 28th April 2016.

 

 

 

26.The allocated social worker undertook a sibling attachment assessment. The report, approved by the then team manager, is dated 7th July 2016: some three months after the decision had been made to place the twins separately for adoption. It is asserted by the local authority that the social worker, whom I shall refer to as D, gave an oral report on this issue but I do not know when nor to whom this oral report was given. Quite astonishingly and wholly contrary to good social work practice, there is no note or minute of the manager’s decision made on 10th April. Therefore, I do not know what material he considered when making his decision and I do not know the reasons or basis for the same. Thus, I do not know whether he considered the oral report of D. Moreover, I have had no explanation as to why it took D three months to write up her assessment.

 

 

27.I will return to this so-called assessment later in this judgment, but I note in the summary of her report D asserted:

 

 

 

“Having considered the legal, policy, moral and best practice guidance, it is essential that GT and BT have the opportunity of an adoptive family.

 

GT and BT’s care plans have remained to be one of adoption (jointly placed) for a considerable period of time. Over the period of 12 months, family finding attempts have not been successful.”

 

This does not reflect the court’s approved care plan which was for a 9-month search for an adoptive placement together to be followed, if unsuccessful, a by three-month search for a long-term foster placement together. I have been given no explanation as to why or how D in her assessment completely misrepresented the care plan: whether it was deliberate or just an error I do not know.

28.I am satisfied that the prospective adopters were unaware of the flawed decision making process relating to the separation of the twins until these proceedings seeking adoption orders in respect of BT and GT had been commenced.

 

GT was placed with prospective adopters in March 2017, BT in May 2017. The Local Authority ended contact between them, there being just two sessions of contact for twins (aged at that time seven) in a YEAR.

 

 

 

35.They did not then see each other again for seven and a half months until there was a contact visit on 27th October 2017 and then no contact for over four months until a visit took place on 4th March 2018. I do not understand how, why or when the hugely important decision was taken to so severely curtail, indeed deny, the children an ongoing relationship once they had been placed for adoption. For the avoidance of any doubt, it was the local authority which determined this level of contact. I make and intend no criticism of the prospective adopters.

 

 

The Local Authority accepted a large catalogue of failings at the Court hearing

The Local Authority: Actions and Failings

44.The admitted failings of the local authority which led to breaches of BT and GT’s human rights and those of the prospective adopters are set out in Annexe 1 to this judgment. These admitted failings are supplemented by further admissions of failings by the local authority, together with notes of the actions taken by or to be taken by the local authority to prevent, or at least, ameliorate the future risk of such failures of the system and of social work practice occurring. This schedule was prepared by Liz Elgar, the assistant director of children’s services and is set out in Annexe 2 to this judgment.

 

 

45.The admitted breaches of human rights and the schedule of failings of the local authority are extensive and grave. They relate to the whole operation of children’s services in Herefordshire. They are both systematic and the fault of individual social workers, team managers and line managers.

 

 

46.This said I commend the approach taken in this case by the new management team of children’s services, including in particular the Director, Chris Baird, and the Assistant Director, Liz Elgar, for the open and forthright manner in which they have responded to the divers criticisms made. I am reassured by their expressed commitment to a root and branch reform of children’s services in Herefordshire and a commitment to ensure that far more robust systems are in place to ensure compliance with good social work practice.

 

 

 

  1. The breaches of human rights may be summarised:

 

  1. i) a failure to undertake a thorough analysis of the need to change the care plans for the children and a failure to consider appropriately the consequences of separating the twins;

 

  1. ii) a failure to disclose in full detail the needs of, the challenging behaviours of and the past life experiences of BT or GT to their prospective adopters;

 

iii) a member of the social work team deleting references to the children’s challenging violent behaviours from the Child Permanence Reports (‘CPR’) and the Adoption Support Plans;

 

  1. iv) the wholly unmeritorious decision and issuing of a s.35(2) notice to remove BT from his placement with A and B;

 

  1. v) the undue stresses and strains caused to the prospective adopters by:

 

  1. a) the local authority’s flawed decisions; and

 

  1. b) as a result, these prolonged court proceedings which have had an adverse impact on BT and GT’s experience of family life;

 

  1. vi) the failure to consider properly the alternative plan for placing BT or GT in long term foster placements and to adhere to the court approved care plans;

 

vii) the failure to hold adoption reviews rather than LAC reviews (adoption reviews have an entirely different mandatory criteria to consider than LAC reviews: see Adoption Agencies Regulations 2005, regulation 36); and

 

viii) the failure of the Independent Reviewing Officer system to take any steps to secure any cogent care planning for the children and/or to protect them from the consequences of flawed and/or ill-considered decisions.

48.The schedule of supplemental failings set out in Annexe 2 may be summarised as follows:

 

 

 

  1. i) a failure in the original care plans to set out what the local authority would do if a placement together could not be found after 12 months;

 

  1. ii) a lack of management oversight;

 

iii) a failure to follow the court approved care plan to a correct conclusion;

 

  1. iv) a failure in the decision-making process to place the twins separately for adoption;

 

  1. v) the failure to acknowledge the significance of maintaining the legal sibling relationship of the twins;

 

  1. vi) the failure to acknowledge the legal relationship between BT and GT and their older siblings;

 

vii) the failure to record the reasons why a manager made the decision to place the twins separately for adoption on 10th April 2016;

 

viii) the failure of the LAC review on 11th April 2016 to consider pursuing a plan of long term foster care or commissioning further expert report(s) on the issue of placing the twins separately;

 

  1. ix) the failure to promote contact between the twins once they had been placed for adoption;

 

  1. x) the failure in applying full and accurate information in the CPRs and Adoption Support Plans including the adoption team manager wrongly and inappropriately deleting information about the twins challenging behaviours;

 

  1. xi) the failures of the IROs to take any steps to oversee and/or challenge the local authority’s decisions;

 

xii) the failure of the ADM decision making process, namely to fail to consider the impact on the children throughout the whole of their lives of separating them; and

 

xiii) the failure of the local authority, as a result of poor record keeping, to provide accurate evidence to the court.

49.Most regrettably all these admitted failures were not the end of this long litany of errors and misrepresentations. On the second day of the final hearing the local authority discovered there were documents and records, which contrary to previous orders and/or the local authority’s general duty of disclosure, had not been disclosed to the court or to the parties. When the disclosure was made it amounted to some 200 pages. I gave the parties the whole of the following day to read and digest the documents disclosed and to take instructions.

 

 

50.It caused the prospective adopters considerable distress to discover that within this disclosed material were matters relating to the children which had not previously been communicated to them by the local authority nor had it been communicated to the adoption agencies supporting the two sets of prospective adopters. [REDACTED TO PRESERVE CONFIDENTIALITY].

 

 

51.The emotional pressure on the prospective adopters was great enough without the added burden of having to receive and cope with the new information revealed. I do not understand the explanation offered as to why this material had not been disclosed earlier, other than it resulted from yet another error by an employee of the local authority. I received no explanation as to why the information revealed had not been previously communicated to the prospective adopters or their supporting adoption agencies.

 

 

However, over and above that, emerged the actions of the social worker who had written the sibling assessment (after the conclusion of proceedings) that formed the basis of the decision to separate these twins

 

 

 

52.It then emerged that the then social worker, D, the author of the sibling assessment had misquoted the opinions of Dr Mair Edwards, a consultant psychologist, who had prepared a report on the children for the purposes of the original care proceedings. The extract contained in the sibling assessment of July 2016 reads as follows:

 

 

 

Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””

 

It will be noted three dots appear about halfway down the extract indicating some material had been omitted

 

One hopes, of course, that the three dots are just indicating that there was extraneous and irrelevant information contained which has been snipped out to provide an accurate and thorough summary of what Dr Edwards had said.

 

Oh, dear.

 

Counsel for the children’s guardian, Mr Kingerley referred me to Dr Mair Edwards 2014 report. The passage omitted from the above extract reads as follows:

 

“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.”

53.The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not.

 

 

54.I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect.

 

 

The Judge went on to explore the other expert advice that the Local Authority had (quite properly) obtained when deciding whether to separate twins and if so, how to best manage this so that the damage could at least be reduced (but sadly had largely ignored)

55.The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of 12th April 2016. On the issues of separation and future contact between the twins if the decision was made to place them separately she said:

 

 

 

“Making the decision that twins should be separated is problematic. Although each child’s needs may be better met in separate families, they have been constant companions to date, and will find separation confusing and stressful. In addition they share a common heritage and history. The complexities of these children’s circumstances and individual needs should be considered at length and in detail, so that a decision can be made which will be of most benefit to both the children.

 

If they are to be separated, it would seem vital that there is ongoing contact between them. Both children would find the separation difficult in the short term especially, and would need the reassurance of frequent contact.

 

Ongoing contact would rely on two adoptive families both being willing to commit to this. If one child is adopted and one remains in foster care, then contact with the adopted sibling needs to be carefully considered, due to the link to the birth family.

 

Separation would obviously need to be done with a carefully constructed programme that takes both children’s needs into account.”

56.In light of this clear recommendation I am at a loss to understand why the local authority did the exact opposite. Prior to placement with the prospective adopters the twins had a ‘see you later’ contact session and that over the succeeding eleven months they had contact on just two occasions. The local authority was unable to explain who had made this decision for there to be very limited contact between the twins post placement or why this decision had been made.

 

If, like me, you are waiting to see what the reasons given by the Local Authority for the need to separate the twins in the first place was then you, I and the Judge were all equally frustrated that the reasoning just never materialised

 

 

 

 

57.The catalogue of the local authority’s errors and failings in this case is troubling and hugely lamentable. I do not minimise any of the admitted breaches of human rights and/or the other admitted failures by highlighting what I consider to be the most egregious failures, namely:

 

 

 

  1. i) the deletion of important and highly relevant information from the CPRs and Adoption Support Plans by the adoption team manager. This could only have been done to mislead the prospective adopters about BT and GT’s respective behaviours and needs with a view to increasing the prospects of them agreeing to a placement of BT or GT with them;

 

  1. ii) the deliberate and misleading selective quote from the report of Dr Mair Edwards in the so-called ‘sibling assessment’. I am satisfied that the social worker began this apparent assessment with the end result, that of separating the twins, already decided and wrote an assessment to support that conclusion. I do not understand why this assessment was written up three months after the decision had been taken on 10th April 2016 to place the twins separately for adoption or why this decision was not stayed pending the completion of a sibling assessment;

 

iii) the failure to give full and frank information about the twins to their prospective adopters and their respective supporting adoption agencies;

 

  1. iv) the complete and utter failure of the IRO service to satisfy any of its statutory duties in respect of BT and GT. The IROs and the IRO service did absolutely nothing to protect and promote the welfare best interests of the children and did nothing to challenge the local authority’s dreadful and, at times, irrational decision making and care planning; and

 

  1. v) the failure for there to be any note or record of the matters considered, the documents read or the reasons for taking the life changing decision to place the twins separately for adoption taken on 10th April 2016. It is astonishing given the highly unusual and momentous nature of the decision.

 

70.Ms Elgar, the assistant director of children’s services, and Ms Leader, the team manager, gave relatively brief evidence. Ms Elgar had been in post from June 2018 and Ms Leader became the team manager in July 2017. They both offered profuse apologies to the prospective adopters for the actions and failings of the local authority.

 

 

71.Ms Elgar could not explain how or why the material which had been disclosed at this hearing had not been disclosed at an earlier time or had been ‘lost’ by the local authority. She recognised the local authority’s serious shortcomings and sought to assure the court that action had been, and would continue to be, taken to resolve the identified and admitted failings of the local authority. She accepted the deletions from the CPRs and Adoption Support Plans resulted from a deliberate and wrongful act by an employee of the local authority.

 

 

72.It was Ms Leader who, having heard certain observations by me, checked the electronic records and discovered a considerable amount of material had not been disclosed. She readily accepted the decision to terminate BT’s adoptive placement in late 2017 had been wrong and the whole episode had been badly dealt with by the local authority. Mr Noble had noted that some of the documents disclosed in the hearing related to events some months or even up to two years before but had only appeared on the local authority’s computer system within days of each other in February or March 2018. When asked why this was, Ms Leader said that the previous social worker, D, had got seriously behind with her administration and had thus spent the last few days of her employment uploading two years worth of notes, records and other documents onto the system. When asked how this could have been allowed to happen, she could give no answer other than to say it was not good practice. This ranks as a masterful understatement and was a completely inadequate response. For the last seven or eight months of the social worker’s employment in children’s services, Ms Leader had been her line manager and had taken no effective steps to remedy this extraordinary state of affairs.

 

 

73.Finally, Ms Leader confirmed that no note, record or document had been found relating to the decision made on 10th April 2016 that BT and GT should be placed separately for adoption

 

The Court then was faced with what to do for these twins in the future, it having become abundantly clear that they ought not to have been separated, but that the independent expert analysis was now that they had settled with their prospective adopters and moving them would be profoundly damaging to them.

 

88.I have struggled with the concept that a court could find that it was in the welfare best interests of twins to place them separately for adoption. From the time the case first came before me up to and during the course of this final hearing I was keen to find a route by which BT and GT could be reunited in a single placement. If this proved impossible to achieve, I was keen to find a legal framework, short of adoption, which could afford them the degree of permanence, stability and security which I entirely accept they both so desperately require.

 

 

89.For the avoidance of any doubt, as I observed in the course of the hearing, in expressing these views I did not for one moment doubt the love, commitment and care which A, B and C have afford to BT and GT: quite the reverse. I wholeheartedly commend both sets of prospective adopters for the enormous great love and devotion they have shown to BT and GT, for their unswerving commitment to them and for the superlative care they have given BT and GT. It is plain that, notwithstanding the grave harm and damage they suffered in their past lives, they are thriving beyond expectations in the care of A and B and C. The stoicism each of these adults have displayed in the course of these lengthy proceedings has been admirable.

 

 

90.Nevertheless, BT and GT are not just simply siblings they are twins. In making adoption orders in favour of two separate sets of prospective adopters, I would sever the legal relationship of BT and GT as brother and sister. Further I would sever their legal relationship with their elder siblings. Whilst the latter is very important, it is the former consequence of adoption that principally troubles me.

 

 

91.There is no question of it being a realistic option in the welfare best interests of the children for either of them to return to the care of either parent. The mother manifestly is not capable of caring for them and neither is the father. In any event, he is serving a very substantial custodial sentence and is convicted of offences of child abuse.

 

 

92.Is there any other realistic placement together or apart? On the basis of the powerful and compelling evidence presented by the Anna Freud Centre and the most impressive and persuasive oral evidence of Dr Morris and Ms Mautner, supported by the children’s guardian and the local authority’s assistant director, and the compelling evidence of the prospective adopters, the answer is a resounding no.

 

93.I am of the view that if this local authority had exercised good social work practice and exercised a modicum of child focused judgment in its decision-making processes, there was, in my judgment, a real possibility that the children could have been placed and lived together for a substantial period of their childhoods. They had, I note, lived together in their foster placement for nearly three years albeit not without presenting their foster carers with immense challenges from time to time. Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT’s lives.

 

 

94.I am satisfied on the totality of the evidence before me that I cannot now contemplate moving either BT or GT, or both of them, from their placements without causing them serious harm and, potentially, lifelong grave harm. They are well settled with their prospective adopters and are plainly well integrated into what they consider to be their respective families. They are, for the first time in their lives, allowing themselves to believe they have their forever family. If one or other of them or both of them were to be moved, I accept the evidence of the Anna Freud Centre, that one or both of them would be devastated. They would suffer a sense of considerable loss, their behaviour would undoubtedly regress and they are likely never to allow themselves to trust a future carer or others involved in their lives: even if not likely, there is a substantial risk this would be the consequence of a removal.

 

 

95.To embark on the removal of the children with all the attendant serious adverse consequences cannot, in my judgment, be in the welfare best interests of either BT or GT. Accordingly, I am now persuaded and satisfied that both BT and GT must remain in the care of their respective prospective adopters.

 

The Court was driven to make the adoption orders, though not without a great deal of anguish.

 

Damages claims were agreed and settled.  (I think they seem very low for the twins, but that’s a personal view and opinion rather than a legal one, as damages is not my field)

 

  1. The damages agreed in satisfaction of A and B’s HRA claim were £5,000.00. The same sum was accepted by C in respect of her HRA claim.
  2. When considering the infant settlement approval of BT and GT’s respective claims for breaches of their human rights I had the benefit of advice on quantum by Mr Kingerley dated 16th November 2018. The local authority offered in settlement of the children’s claims the sum advised by counsel, namely £20,000.00 each. I was satisfied in all the circumstances of this case and having regard to recent authorities on the issue of HRA damages, that these were entirely reasonable damages to offer just satisfaction to both children. Accordingly, I approved the settlement achieved for BT and for GT. Further I made the declarations of the breaches of human rights of BT, GT, A & B and C in the terms agreed and set out in Annexes 1, 3 and 4 to this judgment.