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No case to answer in care proceedings

 

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

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

 

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

 

Re AA and 25 others 2019

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

 

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

 

The Judge derived three questions to be answered

 

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

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

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

 

In effect

 

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

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

 

Can I?

 

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

 

So yes, the Court CAN

 

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

 

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

 

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

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

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

 

 

 

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

 

Looking at this further

 

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

 

 

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

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

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

 

Don’t turn around

 

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

 

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

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

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

 

 

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

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

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

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

 

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

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

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

 

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

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

 

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

 

Just to repeat the key passage here

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

 

 

The Local Authority stance at the appeal was of interest

 

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

 

 

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

Is a residential home a person? Or MIND THE GAP

 

The Court of Appeal just had to decide this point, and at first reading it seems an incredibly niche and technical point.  I suspect, however, if you live in the North of England, it isn’t.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2019/1714.html

 

            C (A Child) (Schedule 2, Paragraph 19, Children Act 1989) [2019] EWCA Civ 1714 (17 October 2019)    

 

In essence, because of either a shortage of residential children’s homes in England, or an excess of demand, or ones in Scotland being a better fit, some Local Authorities want to / have to place children in their care in residential children’s homes in Scotland.

That means that they butt heads with Schedule 2 para 19.   There’s a potential problem here  (NOTE that it is NOT a problem for Secure Accommodation in Scotland which has all sorts of its own problems, but not as a result of this particular problem)

 

  1. Schedule 2 to the 1989 Act contains a number of provisions dealing with “Support for Children and Families provided by Local Authorities in England. Paragraph 19 contains “Arrangements to assist children to live abroad”.
  2. Paragraph 19 provides as follows:
    1. 19(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.

(2) A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.

(3) The court shall not give its approval under sub-paragraph (1) unless it is satisfied that—

(a) living outside England and Wales would be in the child’s best interests;

(b) suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;

(c) the child has consented to living in that country; and

(d) every person who has parental responsibility for the child has consented to his living in that country.

(4) Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, special guardian, or other suitable person.

(5) Where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person—

(a) cannot be found;

(b) is incapable of consenting; or

(c) is withholding his consent unreasonably.

(6) Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom)] shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.

……

(9) This paragraph does not apply —

(a) to a local authority placing a child in secure accommodation in Scotland under section 25, or

(b) to a local authority placing a child for adoption with prospective adopters.”

The net effect of para 19 is that EITHER

(a) The child has to consent to being placed in Scotland   OR

(b) If the child doesn’t have sufficient understanding to consent, the Court can consent on their behalf IF the child is to live in Scotland with a ‘parent, Guardian, special guardian or other suitable person

So, in a situation where the LA wants to place a child in Scotland in a residential children’s home and the child doesn’t consent,  IS the residential children’s home  an “other suitable person”?  because if not, the placement can’t happen.

  1. On the first issue, (i), paragraph 19(4) applies only if the child is “to live … with a parent, guardian, special guardian or other suitable person”. As Floyd LJ observed during the hearing it is not easy to see how a child could live with a company or an unincorporated “body of persons”. For example, while a child can live in a residential home which might be owned by a company it would be difficult to argue that, as a result, the child was living with a person. Further, when this is added to the fact that the words “other suitable person” follow a list comprising natural persons, I do not consider it is possible to interpret this provision as meaning other than that it is confined, as decided by Sir James Munby P, to natural persons. Whilst I recognise that there might well be a practical need, as submitted by Mr Howling, this cannot counter the factors referred to above and such a need alone would not provide a legitimate basis for the proposed statutory interpretation.
  2. The result of this conclusion is that, when a child does not consent, and regardless of whether they do or do not have sufficient understanding, the court is not permitted to approve their placement in Scotland other than with a natural person. The consequence is that a local authority cannot “arrange for, or assist in arranging for, any child in their care”, who does not consent, to live in a residential home in Scotland (or, indeed, anywhere else outside England and Wales).

 

So (other than in Secure) an English or Welsh LA can’t arrange for a child in their care to live in a residential children’s home in Scotland UNLESS the child consents to that.   (I’m stressing a lot that this does NOT apply to Secure Accommodation, because obviously a child having to consent to that is just not going to happen. Parliament amended Schedule 2 para 19 to specifically take Secure out of this scenario)

 

There’s a hint in the next paragraph that there might at some later point be some Classic Dom TM argument to be made about the child really living with a person  (I suspect like all Classic Dom TM arguments so far, it won’t work if attempted)

 

  1. Given the limited submissions we heard on the history which might lie behind this particular provision and on the broader potential ramifications, I do not propose to address Ms Irving’s additional submission as to whether the term “other suitable person” might be further confined. All I would say is that a court would clearly need to establish who would have parental responsibility or, in broader terms, legal responsibility, for a child before that child could be placed outside England and Wales. One of the problems that has been a feature of some care cases (and still can be judging by the very recent judgment of Re K, T and U (Placement of Children with Kinship Carers Abroad) [2019] EWFC 59) is a regrettable failure to address at an early stage of the process the legal issues which require to be resolved to enable such a placement to take place in a manner which safeguards the child’s best interests.

 

The appeal was also constructed on what

Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent,

 

might actually mean.  Is it a straight Gillick-competence type test?  Or is it softer than that with the Guardian or solicitor for the child just advising the Court that on this issue, the child’s views are genuinely reflective of their settled position?   (I suspect you’d have to at least understand that if you say “I’m not going to live in Scotland” what that means for the other options. Note that unlike the provisions for parents consent to be overridden if they are withholding it ‘unreasonably’ for a child it is a straight key – if you CAN consent and you don’t, that’s the end of it. You can’t be placed in Scotland. )

 

  1. As to the second issue, (ii), we only heard very brief submissions because we had already decided that the legal point raised on behalf of the Guardian was correct. This is not, therefore, a case in which it would be appropriate to provide detailed guidance, if such is in any event required. I would, however, make the general point that the answer to the question of whether a child has “sufficient understanding” requires consideration of all the relevant information and evidence and involves a broad assessment of the child’s intelligence, maturity and understanding of the factors relevant, in the context of paragraph 19(4), to the proposed placement outside England and Wales.
  2. This need not be an extensive investigation or analysis but in my view, in the circumstances of this case, it required a more extensive consideration than that given by the judge. I fully accept that the judge was being given the opinion of a very experienced solicitor but there was also evidence from the Social Worker with which the judge needed to engage. It was a decision for the judge to make and not one which depended simply on the solicitor’s opinion. It might, further, have been better to wait until the analysis which the Guardian had been ordered to file had been provided

They add at the end

This may be a “gap” in the legislative framework similar to the situation that previously existed in respect of secure accommodation. I, therefore, propose that this issue be brought to the attention of the President of the Family Division for his consideration.

 

Relinquishing a relinquishment

 

There’s an unofficial competition in this blog for ‘the worst case of the year’ and although it is only October, I think it may be hard to find one worse in the next two and a half months.  It is an unwelcome award and nobody tends to give an acceptance speech for them, it is more “I’d like to blame the following for this…” than a sobbing Gwyneth, and certainly not a Sally Field “You…like me”

 

“Relinquish” in this context means the decision by a parent that they cannot care for their child and would want a Local Authority to arrange for the child to be adopted – consensual adoption would be another way of putting it. I don’t really care for the word ‘relinquish’ myself, but we don’t seem to have settled on a better word yet.

 

Anyway, this is a case in which parents who had four children found themselves with a fifth on the way (at a time when they appeared to be in the midst of a separation) and decided that adoption was for the best for the new baby.  They asked the Local Authority to arrange this and the appropriate steps were taken, and prospective adopters were found who were willing to foster the baby during the process.

 

So far, everything is fine.

 

The problem arose when the parents changed their mind about adoption, and what happened then.

As this is a judgment about a Welsh case, the numbering of some of the statutory provisions may be slightly different to the English ones, but once you square the number of the section of the relevant Act, the wording is the same.

Foster carers v A, B & A Welsh Local Authority [2019] EWFC B52 (27 June 2019)

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B52.html

 

The case was decided by Francis J

 

5                     It is important that I record from the outset that Mr Boothroyd, on behalf of the local authority, has made a complete, fulsome and obviously well-meant apology for the failings of the local authority in this case.  I hope that in due course the carers and the parents will be able to accept that apology, for without the failings of the local authority these proceedings would not, in my judgment, have been necessitated.  Whether, and if so, to what extent proceedings are later taken against the local authority is not a matter for me – or certainly not a matter for me at the moment.  I do tentatively suggest, however, that if any proceedings against the local authority are taken at a time when I am still a judicial office holder, it would be appropriate for such applications to be heard by me.

 

6                     I said at the outset of these proceedings, and it is worth me repeating now, that the human misery in this court is palpable.  From everything that I have read and heard, although I have heard no oral evidence, it seems obvious to me that the applicants and the parents are all thoroughly decent people who all wish the very best for A, with whom this court is concerned.

 

7                     In circumstances which I shall shortly relate, these two decent couples have found themselves pitted against each other in litigation which none of them could have wished for in their worst nightmares.  In short, the position can be described as follows, although I shall relate it in more detail shortly.  Because the birth parents already had four children between them, and because at the time when it was anticipated that A would be born they had personal difficulties and had briefly separated, they formed the conclusion, at least for a time, that it would be better for them, their children, and most particularly for A, if they were to relinquish her for adoption.  It is hard to think of a decision, as a parent, that is more difficult to make, but I am completely persuaded from everything that I have seen and heard that they decided to relinquish A out of love for her and the desire to do the best for her.

    …When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that social worker as being for the best, and the local authority put in place proposed adopters from birth.  In my judgment, they had a duty to discuss this with the mother, in fact with both parents, in detail, before accepting the position rather than actively encouraging them to go through with the adoption.  The Adoption Agencies Regulations 2005, and the Welsh equivalent, pursuant to s.53 of the Adoption and Children Act 2002 mandate the local authority to provide pre-birth counselling to the mother, which would include whether the mother could care for the child with support or whether there were members of the family who could care for her in the short or long term.  Following the birth, the social worker must counsel the mother to see if she still wanted to the child to be adopted.  At the first statutory review, consideration should be given to whether there still remains a chance that the child will return home.  The local authority must do whatever it can to ensure that the child is brought up within her birth family if at all possible.  Prospective adopters, who are selected to accept a relinquished baby from hospital, should be informed they will need to be robust because of the possibility that the parents may change their minds.

The child has lived with the prospective adopters since she was 3 hours old, and had recently had her first birthday.

 

Leading up to the difficulties, around three months after the birth of A

24                 On 25 September 2018, the mother met with the guardian to sign the relevant consents to relinquish A, but due to the mother’s reservations the guardian advised the mother not to sign the consents.  In my judgment, this event on 25 September 2018 is a critical event.  The following day the guardian sent an email, in which she recorded that she was unable to have the consent form signed as it was, and I quote, “Clear that the parents want A to be returned to their care.  They feel circumstances have changed since relinquishing.”  The guardian wisely advised the parents to seek legal advice.  I repeat that this was 25 September 2018, about nine months ago.

 

25                 A contact recording on 5 October 2018 notes, and I quote, “Whilst the mother was cuddling A she whispered to her, ‘I’m going to get you back’, before repeating, ‘Mummy is going to get you back.’”  On 8 October 2018, the social worker recorded that the mother said that she felt that giving A away was a mistake and that she was due to see her solicitor on Thursday.  There is a great deal more in the guardian’s chronology, but what is abundantly clear is that it was only a short time after the birth that the mother, and then, in due course, supported by the father, showed increased anxiety about her decision and increased reluctance to let A go.

 

It was clear by this stage that the mother was having significant doubts about A being adopted.

 

26                 It is evident, and Judge Garland-Thomas so found in the care proceedings to which I will shortly refer again, that in October 2018 the mother was informed by a local authority social worker that if she changed her mind an assessment would need to be carried out which would involve the other children.  This was as devastating for the mother as it was incorrect.  It was devastating because it terrified the mother and, I dare say, the father when she relayed it to him that further local authority involvement with their family would now ensue, with all the risk to the other children that they had been through already, as I’ve recounted above.

 

27                 It is completely evident to me that the birth parents became frightened that an inquiry would now follow into their capacity to care for the four children already at home with them — certainly three of them, one of them I dare say being above the relevant age.  The mother was understandably concerned about previous local authority involvement.

 

28                 Judge Garland-Thomas found that by March 2019 both parents had indicated, reluctantly, that they agreed that A should be placed for adoption.  Judge Garland-Thomas found, however, that on the way back from court on 3 April 2019, the mother disclosed that she did not agree with the plan and that she wanted A back in her care.  It was this comment of the mother’s that persuaded the local authority that they should issue care proceedings.  Judge Garland-Thomas found, and it is obvious to me that she was correct in this finding, that the placement of A shortly after her birth as a foster to adopt placement was not one which had any legal foundation.  It is accepted that the parents agreed accommodation under s.76 of the 2014 Act, but there was no compliance with other legislative requirements.

 

The parents withdrew their consent to adoption.  (it is not clear as to whether they formally withdrew their consent to section 20 foster care accommodation or were informed that they had the legal right to do this)

The Local Authority issued care proceedings for A.  That seems, to me, to be a sledgehammer approach but in the interests of fairness there probably wasn’t any other “legal” mechanism for resolving this.  (the Court can make all sorts of useful declarations under an Adoption application, but an adoption application could not be made).  I’d like to know more about what attempts were made to resolve matters via conversation and social work and possibly legal advice for the parents, but we just don’t know from this judgment.  So if the LA felt that a Court should make the decision as to whether A would go home to parents or stay with the current carers, that was the only legal route for doing so.  (The question of whether it was necessary for the Court to make such a decision is a different matter)

I’m also not sure about threshold, and it turns out that my uncertainty was echoed by two Judges.

 

32                 At the first directions hearing within the now issued care proceedings, it was evident that threshold was disputed.  The local authority sought to rely on the likelihood of emotional harm and neglect arising from the fact that A was relinquished at birth and there had been no contact between the parents and A since October 2018.  Judge Garland-Thomas found herself having to grapple with the relevant date for threshold.  It transpired that the local authority had pleaded three different relevant dates.  Their initial threshold document pleaded the relevant date was 4 July 2018, being A’s birth date.  On behalf of the local authority, this was abandoned by Mr Boothroyd at the hearing before Judge Garland-Thomas and the second threshold document dated 24 May 2019 pleaded the relevant date as 3 April 2019, the date on which the mother requested that A be returned to her care.  Later, in submissions, Mr Boothroyd on behalf of the local authority suggested that the only feasible relevant date could be the date on which the mother originally changed her mind, namely about 25 September 2018. 

 

33                 Judge Garland-Thomas found that it is clear to her that the only date which could possibly be the relevant date is A’s date of birth, 4 July 2018.  She found that the submission that the relevant date is either 3 April 2019 or possibly 25 September 2018 is not sustainable.  On each of those dates A remained in local authority care, where she had been since 4 July.  The judge found that any date other than 4 July 2018 is therefore an artifice seeking to place some blame on the parents for their change of stance.

 

I’m not at all convinced that a parent lawfully exercising their statutory right to change their mind about giving a child up for adoption (particularly when papers had not been signed) gives rise to a likelihood of harm to that child attributable to the care given by the parents not being what it would be reasonable for a parent to provide.

 

36                 The judge found, in paragraph 28 of her judgment, that it would be necessary for the local authority to show, on any of the dates proposed, that there is a lack of care being provided by a parent which gives rise to threshold.  The judge said that she was satisfied, and she so found, that the local authority cannot establish that A has suffered, or that she is at risk of suffering, significant harm attributable to the parents as at any relevant date.  The judgment of Judge Garland-Thomas, therefore, brings the public law care proceedings to an end.  The application for a care order has been dismissed and the care proceedings now will formally end today with the handing down of her judgment

 

There might be a scenario, when the reasons for relinquishing in the first place obviously and clearly give rise to a likelihood of harm if the child is at home with the parents, but just changing their mind isn’t it.

Judge Garland-Thomas, correctly in my judgment, concluded that when the local authority proceeded on the basis of a foster to adopt placement they did not have in place the legal framework to enable them to do so, and care proceedings should have been issued earlier than they were.  It was completely clear by at least 25 September 2018 that the parents were equivocating about their consent to adoption.  There is a duty on this local authority to support and assist parents in the position that these parents were in, and I have already set out the relevant Adoption Agencies Regulations that apply here in Wales.

 

38                 Instead of providing that support and counselling, the local authority actively encouraged the parents to proceed along the adoption route, and even, albeit implicitly rather than explicitly, allowed the parents to feel that failure to continue to relinquish A for adoption could give rise to an inquiry in relation to the other children.

 

39                 Mr Boothroyd on behalf of the local authority, has referred me to a famous but now somewhat old lecture given by Lord Mackay of Clashfern in1989, when he delivered the Joseph Jackson memorial lecture.  It is to be remembered that 1989 is the year of the Children Act, albeit it that did not come into force in 1990 or maybe even 1991.  During the course of that lecture, Lord Mackay said this,

 

“The integrity and independence of the family is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in the law.  Accordingly, unless there is evidence that a child is being or is likely to be positively harmed because of a failure in the family, the state, whether in the guise of a local authority or a court, should not interfere.”

 

40                 The lecture is to be found reported in New Law Journal vol 139 at p.505.  The quoted paragraph being at p.507.

 

41                 Mr Tillyard in sensitively but, if I may say so, in characteristically bold fashion, criticises the local authority.  He lists inter alia the following failings:

 

42                 1.  When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that local authority to be for the best, and the local authority put in place the proposed adopters from birth.

 

43                 I agree with Mr Tillyard’s submission and so find that they had a duty to discuss this the parents in detail before accepting the position, rather than actively encouraging them to go through with the adoption.

 

44                 2.  The local authority should have permitted the mother time to reflect on her decision to relinquish A following the birth, rather than asking her to leave hospital within three hours of A being born.

 

45                 3.  The applicants, that is the carers, had not been approved as foster carers, and so A should not have been placed with them from birth.

 

46                 I wish to make it completely clear that in saying this I do not criticise the carers at all. I criticise the local authority.

 

47                 4.  Once A was placed with the carers, the local authority took far less interest in the mother’s welfare than they should have done.  It took them some three weeks before they even organised contact.

 

48                 5.  The local authority was placed on notice by the guardian in September 2018 that the parents’ consent was likely to be in issue.

 

49                 In my judgment, the local authority should have fully investigated this as soon as it became evident to them.  That was their clear duty.  The local authority told the mother that once she signed the papers for adoption in September or October there would be a final contact session.  The mother was not aware, because nobody told her, that she could have requested ongoing contact.

 

50                 It is clear that, had the local authority carried out its statutory duties pursuant to statute and regulation, from at least 26 September 2018, these proceedings would not be happening. It is overwhelmingly likely that had that action been taken last September, as I have said just over nine months ago, the parents would have been rehabilitated with A and the carers, however sadly, tragically and reluctantly, would have conceded this.  It is almost beyond belief that we are now some nine months later.  Who can possibly blame the carers now for bringing the applications that they do, both within wardship proceedings and for seeking leave to bring the adoption application?

 

 

As a side note, the Judge noted that the mother and father, who stood shoulder to shoulder and had absolutely no conflict between them were represented separately.  This does seem to have become simply the de facto norm position rather than anyone turning their mind to an actual conflict or the genuine possibility of a conflict.  The Judge made remarks which may have wider significance

51                 The mother and the father have each been separately represented in these proceedings before me.  I questioned the need for this; not out of any sense of criticism, but because it seems to me that they stand together shoulder to shoulder in this application.  Of course, as I have recounted above, there was a time when they were separated and that separation appears to have been a significant part, although not the only reason, for the decision to relinquish the baby.  I can well understand that that led people to think that they should be separately represented, however, when questioned about this the best answer that I was given as to the reason for separate representation is that this is what normally happens in public law care proceedings.

 

52                 As I have said, I do not intend to and do not criticise either of the birth parents nor any of the legal representatives for the decision for separate representation.  I do, however, tentatively suggest that if it is obvious to advocates that two parties to proceedings have identical cases, ambitions and evidence, attention should be given to the possibility of single representation.

 

Moving on

 

instead of accepting the facts, the local authority proceeded, as I have said, as if consent was still forthcoming.  I am the first to recognise that local authorities work under intense pressure of work and in circumstances where funding has been persistently and repeatedly reduced.  The pressure on local authority social workers and lawyers is often intolerable.  However, the local authority should not, and cannot, make the mistakes of the kind that have been made by this local authority in this case.  I have already used the words “human misery” above, and I repeat those words now in the sense that the human misery caused by the failings of this local authority are almost too much to bear.

 

55                 Moreover, and in any event, the cost in pure monetary terms of these proceedings, and of any likely proceedings that may in due course be brought against the local authority, will far outweigh any possible savings that could have been made by the inadequate attention that was given to this case.  It is not my task in the course of this judgment, least of all when I have heard no oral evidence, to blame individuals.  Whether this is the failure of one or two individuals in the local authority, or a systemic failure is not something that I can or should comment on in this judgment.  I can only hope, however, that there will be a thorough review by those at the top of the legal department of this local authority to consider what failings were made, and how steps can be put in place to make sure that they can never be repeated.

 

56                 It is clear to me that the carers of A are thoroughly decent people, who have thought of her arrival into their lives as the fulfilment of a dream.  To have that dream taken away from them, as these proceedings invite, is to heap upon decent people misery of a kind that is completely unacceptable.

 

57                 For the birth parents who have pleaded for the return of their child for many months, they have had to endure many months of misery, litigation, and what can probably only be described as hell.  It is, if I may say so, a tribute to the birth parents and to the carers that they have sat in court in close proximity and they continue to offer each other support.  I can only express the hope that one day A will realise that she has not two, but four, wonderful adults in her life.

 

 

The carers were asking the Court to deem that they had the right to make an adoption application, or failing that, to grant them leave to make an adoption application. That was the only legal route they had, if they wanted A to remain with them.  The Court was against that, without criticising them for pursuing it.

 

    Mr Momtaz properly recognises that if A was placed with the carers as foster carers rather than prospective adopters, as I find to be the case and he has properly conceded, then he must apply for leave for them to make an adoption application.  He contends that they should be given leave.  In para.30 of his first skeleton argument he identifies the correct principles as follows:

 

  1. The welfare of the child was a relevant, but not the paramount, consideration.
  2. Another relevant consideration is whether the proposed application has a real prospect of success.
  3. He refers me to the judgment of Wilson, LJ, as he was, who indicated his view that the requisite analysis of prospects of success will almost always included the requisite analysis of the welfare of the child.

 

74                 However, I am clear that this does not permit me, and still less does it encourage me, to draw up some sort of balance sheet between the competing debits and credits of these two decent couples.

 

75                 It is of course the case that A has bonded with her carers, who, as I have repeatedly said, have provided her with an unquestionably good level of love and care.  Within the context of her own young world, I have no doubt that A regards the carers as her parents.  Mr Tillyard submits, and I accept, that I have to weigh this against the rest of A’s life.

 

76                 What is the right of this court to terminate A’s right to family life with her family – by which I mean her birth parents and siblings?  The right of the state to interfere in A’s young life does not, in my judgment, exist.  Judge Garland-Thomas has dismissed the care proceedings and there are no longer any public law proceedings on foot.  The carers, as I have said, are temporary foster parents.  So to describe them will appear to them, I know, to be the deepest of insults.  I do not describe them in this way in any pejorative or critical sense, I am merely using the language of the statute to define the legal position: they are foster carers, and the birth parents are the birth parents.

 

77                 Mr Momtaz concluded his excellent written submissions with a short but, I am certain, correct proposition that the applicants, the carers, only want what is best for A.  He then says that they want the court to be able to make an informed and balanced decision as to her welfare.  The fatal flaw with Mr Momtaz’s submissions, in my judgment, is that I do not get to that welfare stage.

 

78                 Mr Momtaz asks why A should be introduced to the care of her biological parents.  In my judgment this is the wrong question.  The correct question is why A should be prevented from being in the care of her biological parents, when this is precisely what her biological parents want.  I do not for a second question the proposition that what the carers want is what is best for A.  The phrase “what is best for” is emotive and implies all sorts of subjective tests.  I am driven to make my conclusions based on the law.  The law is that adoption is a process of last resort unless consent from the parents is forthcoming.  Everyone in this case recognises that the consent of the parents is not forthcoming now, if it ever was.  There is no material evidence on which I could base a finding that the consent of the parents should be dispensed with.  My task is to find whether the carers have a reasonable prospect of success in their adoption application.

 

79                 With the care proceedings having been dismissed, there is no basis on which I could find that the birth parents are other than, to use the language of family lawyers, good enough parents

 

 

And the application was dismissed, meaning that plans were put in place for A to return to the care of her parents

 

81                 I am driven to the conclusion that the carers have no reasonable prospect of success in their adoption application.  Indeed, I am driven to the conclusion that it is bound to fail.  Accordingly, there is no basis on which I can give them permission to make the application.

 

82                 This leads me to the most painful and difficult debate as to how now to reintegrate A into her birth family.  With exceptional kindness, love and understanding, the carers have offered, even in the face of the prospect of losing their application, to do all that they can to help to integrate A into her birth family should they lose this application, as it is evident to them that they now have.  Should they change their mind in relation to this, nobody, least of all me, would criticise them.  If, however, after a period of contemplation following this judgment, they feel able to continue in this offer, then I know that the birth parents and this court would be grateful to them.

 

83                 It may even be, and I express this very sincere hope, that they can play a part in A’s life as she grows from the toddler that she now is into the girl, and the woman, that she will become.  That is, of course, not a matter for this court but a matter for the four individuals who have patiently listened to this case for some three days.

 

84                 In my experience as a judge in the Family Division I have rarely, if ever, seen such decent accommodation by individuals, of the horrible circumstances in which they all find themselves, and I end where I started by thanking all four of them, and express the hope that the goodwill seen by me in this court will continue, not just in the days and weeks to come, but in the years and decades to come.

 

85                 Accordingly, I therefore dismiss the application for leave to bring an adoption application, and I will dismiss the wardship proceedings.

Author not liable for any wince-related injuries

This case is ‘about’ an application for an injunction to protect a person who was considered to be vulnerable but who had capacity to make their own decisions, but it is really ‘about’  the Local Authority sending 1400 pages to everyone on a Friday for a final hearing that started on Tuesday, with said documents undermining / flatly contradicting the evidence the LA had filed, so it has some broader implications.   I think most people reading this will have had the experience of suddenly being dumped with a huge stack of papers that appeared at the last minute, even if they weren’t quite as voluminous and devastating as this.  It is a salutary lesson that if you do ruin someone’s weekend by doing this, they are going to be highly motivated to make you pay hard for it.

 

London Borough of Croydon v  KR 2019

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2019/2498.html 

 

 

It is telling that the LA had to withdraw the case after the two social workers  gave evidence.

 

 

 

Read and wince

 

I had witness statements from Ms Jones, KR’s social worker; Ms Bamfield, ST’s social worker, and two witness statements from KF. I also had a short statement from KF and ST’s son, DF. I heard oral evidence from Ms Jones and Ms Banfield. I also had in the court bundle 1400 pages of background documents. I understand that these were sent to KR and ST’s lawyers on Friday, i.e. 3 working days before the trial started. Some of them had been previously disclosed, but it is almost impossible to tell which ones. Very few had been exhibited to the LA’s witness statements. The vast majority of these documents will necessarily never have been seen by KR or ST because they come from the LA’s records. Some of these documents paint a materially different picture from that in Ms Jones’ witness statements, particularly in respect of the degree to which ST was obstructing the carers from CSL accessing the property and at least checking on KR. They also paint a different picture of the degree to which KR was at risk.

 

 

 

17.          There are a number of points of concern to me about these documents. Firstly, it is not acceptable that they were only disclosed, at least in this form, so shortly before trial. The hearing date had been set down since 21 May 2019, and the late disclosure meant the bundles were both unmanageable, and in reality, unreadable. Secondly, the disclosure appears to have been in the form of simply putting all these documents in the court bundle without any attempt to agree the bundle. Again, this is not acceptable, at the least attempts must be made to agree a bundle, and the bundle should be limited to documents which will be necessary for the judge to consider.

 

 

 

 

18.          Thirdly, and most importantly, I am seriously concerned about the discrepancies between what some of these background documents show and what was said in the evidence to the court, particularly in the first witness statement of Ms Jones, which was the basis of the without notice order. This case commenced with an application for an injunction without notice. It continued through a series of interim injunctions where the judges necessarily had very limited time to examine background documents, even if they had been exhibited, which in key instances they were not. It is trite law that when a without notice injunction is applied for there is a duty of full and frank disclosure and there is in any event a duty on any claimant not to mislead the court. This is just as true in proceedings like this as in the Commercial Court or Queen’s Bench. Indeed it is relevant, and I will return to this below, that the injunction sought was not just draconian it was deeply intrusive into the private lives of two adults with capacity. I will refer below to the European and domestic caselaw on the importance of the State not interfering into individuals’ marriage. In those circumstances the obligation for full and frank disclosure is as important if not more important, than in any other form of litigation. I appreciate local authorities are hard pressed, and poorly resourced, however the importance of ensuring the Court is possession of all the relevant facts at a without notice injunction application cannot be overstated.

 

 

 

19.          The starkest example of the failure of the evidence presented to court to properly reflect the true factual position is as follows. In her first witness statement dated 20 March 2019, filed to support the without notice application, at para 12 Ms Jones said;

 

 

 

 

“A new care agency started to work with KR three times a day 9:00. 12:00 and 17:00 and this has worked well intermittently. This is the first agency that has been able to persist with the situation and from 3-week period of recent records ST allowed the carers in on average 3 calls a week out of a potential 39 recorded calls see exhibit DL5. The carers go to each visit and if ST shouts and turns them away they go to the window and check on KR, they report that he may wave from his bed and they then leave and return for the next visit. When asked, KR states that he wants the carers to continue and that he wants to go out with his carers when the hoist is fitted.”

 

20.          This is a paragraph that would cause any judge deep concern about the safety of a seriously disabled man who was on the face of the evidence being isolated from his carers on a very large number of occasions. Surprisingly, the bundle I was given did not actually contain the exhibits to the witness statements, but I was handed DL5 in court. That was a note which was produced at a meeting that Ms Jones had had with the manager of CSL. What this note made clear was that twice every week CSL had produced no information about the number of visits, and whether ST had prevented access or not. This immediately undermined the evidence referred to above that on average ST had only let in the carers three times each week. There were 6 wholly unaccounted for visits, where there was no evidence that ST had refused access. Ms Jones could not explain why there were two unaccounted for days. Further on close scrutiny during cross examination it became clear that the average of access only being allowed three times a week was not even sustainable on the days on which there was information.

 

 

 

21.          There was also a paragraph in Ms Jones’ first witness statement which said that the MARAC professionals meeting had agreed that there was a “very real risk of accidental fatality”. However, when the minutes of the meeting were examined in Court (after the disclosure referred to above), they did not support this sentence.

 

 

 

22.          I am sure that Ms Jones was not seeking to mislead anyone, but there was a lack of attention to the background documents, and a failure to present the full picture which is very concerning

 

 

I’ve drafted my views about the beginning of paragraph 22 about 8 times, and can’t find a safe way of expressing what I think. So I’ll say nowt.

 

What responsibility do CAFCASS have towards children who AREN’T the subjects of proceedings?

In this family case, an argument arose as to whether the father had committed a sexual act with a child, AB, who was not in the family and was not part of the proceedings. Consideration was given as to whether AB should give evidence in the family Court – the father disputed the allegations.

 

The Court gave directions to undertake a Re W exercise – the Court asks for evidence to be gathered about the merits and risks of the young person giving evidence. Where the young person is a child the subject of proceedings, it is the Guardian who speaks with the child and prepares a report about the ability of the child to give evidence and their views and the impact upon them. The Court then hears argument and decides whether the child should give evidence and if so whether any special arrangements are to be put in place.

 

Here, the Court made a direction for CAFCASS to do the work, and CAFCASS objected, so the Court then directed the social worker to do it.   (The Local Authority raised that this was an issue of public importance – Guardians are well placed to obtain the wishes of children and do the Re W assessment and are more neutral than the LA whose job it is to prove the allegations, and the case was listed for consideration before Keehan J in the High Court.

A County Council v Children and Family Court Advisory and Support Service (Cafcass) [2019] EWHC 2369 (Fam) (20 September 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2369.html

 

The Submissions of the Local Authority

  1. The local authority submitted that the court does have the power to make the direction given in this case in respect of a non-subject, non-party child and that Cafcass would not be acting outwith its statutory functions. The issue is a matter, it is said, of the statutory construction of s.12 of the 2000 Act and of the relevant rules in the FPR.
  2. In support of this submission the local authority rely on four aspects of the statutory and FPR provisions, namely:
    1. i) s.12(1)(b) provides that it is a function of Cafcass to “give advice to any court about any application made to it in [family] proceedings”;

ii) r.16.20(2) provides that “the children’s guardian must also provide the court with such other assistance as it may require”;

iii) paragraph 6.1(b) of PD16A provides “obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs must be obtained”; and

iv) paragraph 6.6(f) of PD16A provides the children’s guardian must advise the court on “any other matter on which the court seeks advice”.

and that in terms, the Court has the power to direct CAFCASS to do anything that would assist the Court or on which the Court wants advice.

The Submissions of Cafcass

  1. It was submitted that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” confirm the parameters of the role of Cafcass is limited to the subject child or children. Further, it was submitted that the subsections of s.12 of the 2000 Act should not be read disjunctively. The reference in s.12(1)(c), “make provision for the children to be represented in such proceedings”, emphasises the point that the role of Cafcass is limited to the subject child of the proceedings.
  2. The point is forcefully made that it is the function of local authorities’ children services departments, and not Cafcass, to be responsible for the safeguarding of children generally. The duty of Cafcass to safeguard children is owed to those who are the subject of family proceedings.
  3. The general nature of the powers and duties of Cafcass was noted by the Court of Appeal in R and Others (Minors), R (ota) v The Child and Family Court Advisory and Support Service[2012] EWCA Civ 853. McFarlane LJ, as he then was, observed,
      1. “On its wording and in its immediate statutory context, the natural reading of s.12 is that it is concerned with establishing a general framework of operation for CAFCASS, not with creating duties owed to individuals. The purpose of the section is to lay down the principal functions of the body established by s.11. By s.78, those functions include both powers and duties. By paragraph 9 of schedule 2, they are to be performed in accordance with any directions given by the Lord Chancellor (for Lord Chancellor now read Secretary of State – see note at paragraph 28 above). All of this is very general in nature. So too is the wording of the functions themselves. That is true not only of the functions in subsection (1), to “safeguard and promote the welfare of children”, “give advice to any court …”, “make provision for the children to be represented …” and “provide information, advice and other support …”, but also of the duty in subsection (2) to “make provision for the performance of any functions conferred on officers of the Service …”. There is nothing in any of this to suggest a legislative intention that all or any of the duties created by s.12 are owed to the individuals for whose benefit the functions are to be performed. On the face of it, these are general public law powers and duties. Nor was our attention drawn to anything within the other parts of the CJCSA 2000 that might suggest a different view.”
  4. The Court of Appeal considered the approach of the court in undertaking a Re W assessment in Re E (A Child)[2016] EWCA Civ 473. At paragraph 61 McFarlane LJ, as he then was said,
      1. “It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.”
  5. As in the case of Re B, the court in Re E was not considering the position in respect of a non subject child nor the role of Cafcass, if any, in relation to such a child.

 

CAFCASS were arguing, in effect, that the powers of the Court to make directions for CAFCASS to do things were limited to the children who were the subjects of the proceedings.

 

I think you can tell from the first paragraph of the discussion that CAFCASS are going to win this, and indeed they do.   Cue every Local Authority lawyer falling off their chair in amazement.

 

Discussion

  1. The interpretation of s.12 of the 2000 Act and the relevant rules contended for by the local authority, see paragraph 23 above, would effectively place no limit on the work or the role a court could direct Cafcass or an officer of the Service to undertake. Counsel for the local authority conceded this point but submitted that ‘common sense’ must be applied to limit the scope of what a court may require of Cafcass. I do not find this, to put it mildly, to be an attractive nor a persuasive submission: rather it undermines the local authority’s contention. I cannot accept that Parliament intended to create a statutory national body to advise and assist the court in family proceedings, and to represent the children who are the subject of those proceedings, without any restriction or limit on its function and roles. Still less would Parliament have intended that the restrictions or limitations on the role of the service would be determined by applying common sense.
  2. The advocates were agreed, that according to the best of their respective researches, there is no reported authority on the interpretation of s.12 of the 2000 Act in respect of the scope of the function of Cafcass.
  3. In respect of whether the subsections of s.12 should or should not be read disjunctively, I note that:
    1. i) the words ‘or’ do not appear after subsections (a), (b) or (c); and

ii) neither does the word ‘and’ appear after subsection (c).

It is in my judgment, however, significant that s.12(1) reads “it is a function of the Service to” followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word ‘functions’ to appear in s.12(1). The use of the word ‘function’ in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to ‘make provisions for the children to be represented in the proceedings’, I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings.

  1. Furthermore, I agree with and accept the submission made on behalf of Cafcass that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” should be interpreted to mean that the role of Cafcass is limited to the subject child or children of those proceedings.
  2. I am reinforced in coming to this conclusion by taking account of the following matters:
    1. i) the appointment of the children’s guardian in public law proceedings under Part IV of the 1989 Act (‘specified proceedings’ as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act);

ii) the appointment of a children’s guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR);

iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR);

iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and

v) the powers and duties of a children’s guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child.

  1. I am in no doubt that a children’s guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child’s relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child: see FPR r.16.20(2) & PD16A paras 6.6(f) & 7.7. Similarly, a children’s guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child.
  2. It is quite a different matter to seek to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to work with and advise upon a non-subject, non-party child. I have not been referred to any statute nor to any relevant rule of court which makes provision for such an appointment in these circumstances. I am satisfied such an appointment is outwith the statutory function and role of Cafcass.
  3. Conclusion
  4. I, therefore, conclude that the court has no power to require Cafcass to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to undertake any work with or play any role with AB.
  5. The preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker. The young person, if called to give evidence, would have been the local authority’s witness on whose testimony it relied in seeking to prove relevant facts which, if found to be proved, would have satisfied the threshold criteria of s.31(2) of the 1989 Act.
  6. I have not taken account of the potential adverse consequences for Cafcass, in terms of workload, if I had concluded the court had the power to make directions in respect of a non-subject child. Given, however, the increase of the workloads for all concerned in the child protection and family justice systems, now is not the time to consider widening the scope of the functions of Cafcass with its current resources

Can and should a Local Authority facilitate the use of sex workers for a vulnerable adult?


This is an issue that comes up from time to time, and it provokes a lot of contentious debate on either side. On the one hand, there’s the argument that sex work is exploitative and in this country subject to criminal laws.  On the other, there’s the argument that there are certain vulnerable adults who have appetites and needs and are not able to have those needs met any other way.   I’m taking no moral stand either way on this argument, just reporting what the High Court, in this particular case before Keehan J, decided.

 

In this case, the Local Authority went to the Court of Protection to say that they did not feel that facilitating P’s use of sex workers either in this country where it would be illegal, or by facilitating his travel to the Netherlands where it would be, was in his interests and that they did not wish to do it, and sought a declaration from the Court to that effect.

https://www.bailii.org/ew/cases/EWCOP/2019/43.html

 

Lincolnshire County Council v AB [2019] EWCOP 43 (08 May 2019)

 

1.These proceedings in the Court of Protection are brought by Lincolnshire County Council in relation to a man, AB, whom I shall refer to as ‘P’ in this judgment. He is a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse. He suffered, sadly, a chaotic childhood. He had difficulties engaging in mainstream education and spent much of his childhood in boarding schools, due to concerns about his behaviour, which are recorded as having been inappropriately sexualised from a young age.

2.He was first detained under the Mental Health Act 1983 in 1985. Thereafter, he was detained on a further 10 occasions between 1985 and 2003, generally as a result of interpersonal conflicts, alcohol abuse or withdrawal hallucinations and seizures. In 2000, P moved into his own property and began a relationship with a woman, who was noted to have exerted significant influence over him. The pair are recorded as falling into a pattern of drinking and engaging in antisocial behaviour in public. In July 2003, P was evicted from his flat, having caused significant and substantial structural damage.

3.In October 2003, he was admitted to hospital. Thereafter, he was detained under section 3 of the Mental Health Act and he remained in various psychiatric facilities for the next seven years. On his discharge in October 2010, P moved to another placement. It was here that he developed a friendship with a local prostitute and thereafter, began his fascination with female sex workers. He has since lived at a number of residential properties and during this time he has been facilitated to access sex workers, and then on occasions, to travel to the Netherlands to have sex with prostitutes there. In November 2008, he moved to his new supported placement. In April 2018, Lincolnshire County Council made an application for the court to determine P’s capacity and best interests, specifically with regard to contact with sex workers.

4.Evidence was sought from Dr Lisa Rippon, who concluded that P lacked capacity in all relevant domains, save the capacity to consent to sex. On the issue of contact, and particularly contact with sex workers, she said as follows:

“P has limited insight into the risks that others might pose to him, including sex workers, and overestimated his ability to keep himself safe. He could not think through the potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system. I believe that P failed to both understand the information necessary to make decisions about contact and was unable to weigh up the benefits and risks. It is therefore my opinion, that P lacks capacity in this area and this is as a result of his learning disability and autism.”

5.The position now, is that the local authority do not intend to facilitate P’s access to sex workers, whether in this country or abroad, in particular in the Netherlands. They set out their reasons in a detailed and helpful position statement. P’s litigation friend has visited him on a number of occasions in the recent past to gain his views. P, it is said by his litigation friend, has a high sex drive and finds the lack of access to sex workers frustrating. He has stated that self-pleasuring using pornography, sex dolls and toys, is not the same as having physical contact with a woman. He would wish to continue his past conduct of having and being permitted to have sexual relations with sex workers, here and in the Netherlands.

 

 

That sets up the background and the judgment then moves onto the decision

 

Conclusion
6.I have due regard to P’s wishes and desires. But I have come to the clear conclusion that the local authority have adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad.

7.In coming to that conclusion, I have had regard to s.2 of the Mental Capacity Act 2005. There has been no change in the P’s circumstances, namely that he lacks capacity as I had set out above. I have also had regard to ss.3 and 4 of the 2005 Act. I note that a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.

8.If care workers who look after and support P, were to facilitate such activity, they would be committing a criminal offence and any declaration by me, would not alleviate their liability to be prosecuted. In the Netherlands, of course, prostitution and payment for sexual services are not illegal. But in my judgment, there is a very real risk that if a care worker here, supporting P, made arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, they would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.

9.Accordingly, I would not be minded to make any declaration permitting care workers or the local authority to arrange for P to have sexual activity in exchange for payment with a woman, either in this country or in the Netherlands. Secondly, and in any event, I consider it would be wholly contrary to public policy for this court and for this local authority, to endorse and sanction P having sexual relations with a woman for payment. Thirdly, and in any event, notwithstanding P’s clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, I do not consider it is in his best interests to do so. I have well in mind, his expressed views that he does not consider that he would otherwise be able to have a relationship with a woman and therefore, he sees no alternative but to seek to use the services of prostitutes.

10.I have regard to the fact that he finds self-pleasuring is not of the same enjoyment or satisfaction as having sexual relations with a woman. In light of the opinion of Dr Rippon, however, it is clear that P does not understand all of the implications of having sexual relations with a woman for payment. He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands. In those circumstances, I am entirely satisfied that it is wholly contrary to his best interests for him to have sexual relations with prostitutes. Still less, is it appropriate for this court to sanction the same. On behalf of P, his litigation friend through counsel, Miss Twist, acknowledged those factors, not least the impact of the criminal law and did not seek to pursue an application for the court to grant such declarations. In my judgment, that was an entirely right and appropriate decision.

11.I have been asked to give this short extempore judgment, so that it may be transcribed and a copy given to P, so that he may know why the court has come to the above conclusions. I entirely accept that P will be, to put it mildly, disappointed by and he will undoubtedly not agree with my decision. Nevertheless, I am satisfied that the conclusions I have reached are in his best interests.

 

Ladds ladds ladds

 

The Court of Appeal give guidance on how to challenge findings of fact made where the ground to do so is as a result of fresh evidence.

 

Re E (Children :Reopening findings of fact) 2019

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1447.html

I’ll dash through the facts of the case.  Child aged 10 months found to have 3 cigarette burns on her arm, variety of explanations given, rejected by expert in care proceedings, Court made findings of inflicted injury. Care Orders were made in relation to that child and two older siblings.   At  later criminal proceedings of mother, a medical expert accepted mother’s explanation of an accident and the criminal case was dropped.

 

Those representing the mother considered this to be fresh evidence, capable of satisfying the Ladd v Marshall guidance

  1. Ladd v Marshall [1954] 1 WLR 1489 remains powerful persuasive authority: see Sharab v Al-Saud [2009] EWCA Civ 353 and generally the discussion in the White Book 2019 at 52.21.3.
  2. Ladd v Marshall familiarly provides that:
        1. “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
  3. The durability of Ladd v Marshall shows that it encompasses most factors relevant to applications that are likely to arise in practice but as Hale LJ noted in Hertfordshire Investments Ltd. v Bubb [2000] EWCA Civ 3013 [37] the criteria are not rules but principles to be looked at with considerable care.

 

 

There has previously been judicial discussion as to whether the Ladd v Marshall provisions should be more generously interpreted in family cases, and the Court of Appeal clarify this

 

  1. It has been said that the Ladd v Marshall analysis is generally accepted as being less strictly applied in cases relating to children: Webster v Norfolk County Council [2009] EWCA Civ 59 per Wall LJ at [135]. At [138] he continued:
        1. “The rationale for the relaxation of the rule in children’s cases is explained by Waite LJ in Re S (Discharge of Care Order) [1995] 2 FLR 639 at 646, where he says:-

The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.”

  1. In Re G (to which I have already referred) Macur LJ made this observation about Webster:
        1. 16. For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.”
  2. A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.

 

 

Those representing the mother believed, reasonably, that the only route open was an appeal

When pursuing the route of an appeal out of time, those then advising the mother believed that it was the only course open to her. That belief was understandable, being based upon a statement now in the Red Book 2019 at p.2247 that the first instance court has no jurisdiction to re-open findings of fact once an order is sealed, a statement that reflects obiter observations made by this court in Re G (A Child) [2014] EWCA Civ 1365,

 

The Court of Appeal were looking, however, as to whether an alternative route of inviting the Court who made the findings to revisit them in the light of fresh evidence was available.

 

I think most of us believed that once the order was sealed, the Court was done, and it would have to be an appeal.

 

A case I wrote about years ago suggested this (it is the one where the Judge originally gave a judgment finding one parent responsible for the injuries but before the order was typed up and sealed changed her mind and found the other responsible.  This was permissible as long as the order were not sealed.  Permissable procedurally in any event, there are obvious appeal points about the forensic process.

 

  1. The case referred to (Re L and B) was an unusual one. A trial judge had given a short preliminary judgment at the end of a fact-finding hearing, determining that the father was the perpetrator of injuries to the child. A request for clarification was made and two months later a ‘perfected’ judgment was provided in which the judge stated that both parents may have been the perpetrator. The Supreme Court held that on the facts of that case the judge had been entitled to change her mind as the order in that case had not been sealed. These are the paragraphs referred to in Re G:
        1. “16. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.

19. Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal.

42. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.”

  1. These paragraphs are therefore particularly concerned with the circumstances in which a judge may or may not change his or her mind. They are not addressed to a situation in which the court is being asked to take account of further evidence, although that clearly could be one reason for a change of mind

 

 

It was clear in this case that the Care Orders had been made, and thus the orders sealed, so appeal seemed to be the only route to looking at the findings again in the light of the medical evidence obtained in the criminal proceedings.

 

BUT

  1. 40… more fundamentally, the statutory landscape had changed with the establishment of the family court. The court came into existence on 22 April 2014 by virtue of Part 4A of the Matrimonial and Family Proceedings Act 1984. This includes section 31F (‘Proceedings and Decisions’), comprising nine subsections of which two are relevant:
      1. “…

(3) Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.

(6) The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.

…”

  1. In my judgment, s. 31F(6) gives the family court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter. While a finding of fact is not in a strict sense “an order”, it can comprise the determination of an issue that is crucial to the disposal of the proceedings and is susceptible to appeal: Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 per Dame Elizabeth Butler-Sloss P at 336-337. Such a finding of fact is integral to the order on which it is based and accordingly comes within the scope and purpose of the section.
  2. My further assessment that s. 31F(6) continues to apply after the end of the individual set of proceedings is based firstly on the fact that the words of the section are not expressed to be limited in duration, but secondly and more fundamentally on the intrinsic nature of family proceedings. As I said at the outset, findings of fact can have longstanding consequences for children and families. Their effect is not only felt in the moment they are made, but persists over time. There is therefore no reason to limit the time within which the court can exercise its power to correct a flawed finding of fact that may have continuing legal or practical consequences.

 

Obviously if the original Judge does not do so, the route for an aggrieved parent then is appeal, but this opens the door to the original Judge being asked to reconsider as an alternative to an appeal.

 

  1. Having established that the family court has jurisdiction to review its findings of fact, the next question concerns the proper approach to the task. As with the approach of an appeal court to the admission of further evidence, the family court will give particular weight to the importance of getting it right for the sake of the child. As was said in Re L and B at [41]:
        1. “In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.”
  2. The test to be applied to applications for reopening has been established in a series of cases: Birmingham City Council v H (No. 1) [2005] EWHC 2885 (Fam) (Charles J); Birmingham City Council v H (No. 2) [2006] EWHC 3062 (Fam) (McFarlane J); and Re ZZ [2014] EWFC 9 (Sir James Munby P).
  3. These decisions establish that there are three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
  4. In relation to the first stage, these decisions affirm the approach set out in Re B (see para. 28 above). That approach is now well understood and there is no reason to change it. A court faced with an application to reopen a previous finding of fact should approach matters in this way:
    1. (1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.

(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3) “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.” There must be solid grounds for believing that the earlier findings require revisiting.

  1. I would also draw attention to the observations of Cobb J in Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326 (Fam) about the care that must be taken when assessing the significance of further medical opinions at the first stage (para. 71) and as an example of the need to control the identification of issues and gathering of evidence at the second stage (paras. 86-89).
  2. Pausing at this point to compare the hurdles facing an applicant to the trial court and an applicant to this court, it can be seen that the processes are by their nature different. The gateway under CPR 52.21(2) and the Ladd v Marshall analysis concern the admissibility of evidence, while the first stage of an application for a review requires a consideration of the overall merits of the application. It cannot be ruled out that the different procedures might throw up different results in similar cases, but on the whole I think that this is unlikely. In both contexts, the balancing of the public interests is carried out with a strong inclination towards establishing the truth in cases where there is good reason for a reassessment, and as a result the outcomes will tend to converge.

 

The Court of Appeal note that there is presently a lacuna in that the Family Court can be asked to reconsider findings but not the High Court, and that this has been fixed in relation to ancillary relief by FPR 9.9a and that the Family Procedure Rules Committee may wish to consider doing the same for children cases in the High Court.

 

 

Paternity complexity

 

 

This is a pair of judgments in the High Court, relating to a child, a boy named C.  The judgment doesn’t specify his age, but he was born somewhere between 2006 and 2016  (reading between the lines, and I think he’s probably on the younger end of that spectrum )

AB v CD (No 1) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1695.html

 

and predictably

AB v CD (no 2) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2244.html

 

C’s mother, CD was married in 2003 to AB.  They separated in 2017.  AB then heard rumours that CD had been having an affair (although he did not know with whom) at the time of C’s conception. He sought DNA paternity testing and was devastated to learn, after many years of believing C to be his son, that he was not C’s father.  The mother accepted that she had been having an affair with a man named X, who she did not wish to name

 

  1. AB was devastated by the news that he was not the biological father of C. It was a huge blow to him personally as well as to his pride and status. Following the revelation, relations between AB and CD have been at rock bottom. AB has issued a raft of proceedings against CD including:
  2. i) Proceedings in the Chancery Division for breach of confidence;

ii) Proceedings in the Queen’s Bench Division, claiming back from CD all the money that he has spent on C in the mistaken belief that C was his child and seeking also damages for his distress and for the difference between the sum that CD will receive at the determination of her claims for financial remedy orders and what she would have received if her claims were determined in 2011 as he says they would have been if she had admitted her adultery;

iii) Proceedings under Children Act 1989 for residence and these proceedings;

iv) Financial Remedy proceedings.

The scale of the litigation is immense, with huge teams of lawyers. The Queen’s Bench and financial remedy applications are listed before me for 20 days early next year

Within case number 1, the central issue was Should C be told that AB was not his father, and leading on from that that X was his father, and leading on from that, AB wanted to be told who X was.

  1. The arguments of the parties
    1. AB says that C needs to know who his father is as soon as possible. That means telling him not only that he, AB, is not the father, but that he also needs to know the identity of X. He says that only when he, AB, knows the identity of X can he sit down with X and ascertain exactly what role X is to play in C’s life. Bearing in mind the strength of AB’s feelings, it seems to me highly unlikely that he would be able to sit down with X and have the sort of calm and rational discussion that he envisages. But, whether or not a discussion takes place, it is understandable that he wants to know what role, if any, X would wish to play in C’s life.  
    2.   AB adopts the guardian’s proposal that he and the mother should with professional assistance agree a script and present to C the reality of his paternity. He is not willing to accept the mother’s word as to the identity of X, even if X admits it, and he would want X to undergo a DNA test.
    3. He says that C is bound to ask who his real father is when told that AB is not his biological father and that information should not be kept from him or delayed.
  2. He says further that C has a right to know the identity of his birth father. It is fundamental to his sense of identity and belonging and Articles 7 and 8 of the United Nations Convention on the Rights of the Child underline this point.
  3. AB makes the further point that the lack of knowledge of the identity of X sours his social life in the sense that he thinks it is likely, and I tend to agree, that X is someone who is known to AB and AB does not want to spend his time wondering which of his social circle is to blame and possibly pointing the finger at those who are blameless.
  4. He says that it is important for C to know the identity of X in case there are any hereditary medical problems. I give little weight to that. C is in good health. No problems have yet emerged and on any basis sooner or later C is likely to have to be told the identity of X.
  5. Mr Verdan QC on behalf of AB has sought to argue that since I will be bound (as he puts it) to order disclosure of X’s identity in the Queen’s Bench proceedings, I should not close my eyes to that fact in considering disclosure within the Children Act proceedings. I do not consider that this is an appropriate matter for me to take into account in the children proceedings which are governed by what is in C’s best interests.
  6. But, in any event, it is not a given that X’s identity will be ordered to be disclosed in the Queen’s Bench proceedings against CD or that I shall regard it as appropriate that any claim against X within such proceedings should be determined at the same time as the claim against the mother. I remind myself that there is an outstanding strike out application made by the mother in respect of this claim against her which I may need to consider and determine sooner than envisaged by the existing case management directions.
  7. The mother’s case is that C’s state of biological knowledge is that he simply will not understand what is meant by the concept of him having two fathers in his life. Far better, she says to wait for about two years by when he will understand the genetic process. In the meantime, C can get on and enjoy a full relationship with AB.
  8. She says that when C is told that AB is his psychological but not his biological father it is unlikely that C will, at least in the short term, question who X might be. If he did, she would seek to deflect the issue by saying that it is someone whom C has never met and who plays no part in his life. Only if C became insistent would she tell him. In an ideal world she would hope that the secret of X’s identity might remain in the background until C approaches adulthood.
  9. In particular, she stresses that now is not the right time to tell C anything. The parties are in the midst of an enormous amount of litigation and tensions are high. She would at least want to get past February by when it is hoped I will have determined the body of litigation that is listed before me then.
  10. If C is told who X is, it may lead to C being divided 3 ways. How, she asks, is C expected to cope with that. She has no desire to have X involved in C’s life or run the risk of his undermining the relationship that AB has with C.
  11. The parties live in a culturally conservative society. If the identity of X was revealed that would have a damaging impact on both her and X within their society but also would inevitably have a knock-on effect on C.
  12. She says that at the moment the only person who knows X’s identity other than her is her brother, who has kept the information to himself although in a pleading in the Queen’s Bench action she said that she has also told her parents.
  13. The guardian has provided a helpful report. Her evidence, which the mother and AB accept in this respect, is that the news that AB is not C’s biological father is widely known to family members, the staff in their various residences, and to those in their immediate social circle.
  14. In an ideal world, she says, C would be told by AB and CD together that AB was not C’s biological father. They would do so from a prepared script with which they would have had professional assistance. By then AB and CD would know what X’s views were and whether he wanted to play any part in C’s life, so that if C asks questions about him they would be in a position to answer them. As to when C should be told, she said this in her report:
    1. 26. It is my view that C should be informed of his paternity and that he has a right to this information, which constitutes a crucial tenet of his biological heritage and his identity. Drawing upon the research within adoption literature, there is increasing recognition of the unhealthy and damaging impact of keeping secrets within a family about such fundamental issues and the detrimental impact of children finding out inadvertently, or at a later stage, that such significant information was kept from them.

27. That the information about C’s paternity is so widely known, amongst his extended family, the family and extended family’s staff members and reportedly, within wider society renders it impossible that C would not at some stage, come to learn the truth. It also increases the risk of him inadvertently finding out, or hearing the information from a third party, which would be hugely damaging to him. Further, there is also the potential that C could be told in a moment of anger or hurt, rather than in a way that is managed to be as safe and least harmful way as possible.

28. It is partly for this reason that I consider that ideally, it would be better for C to be told about his paternity now, rather than waiting until he is older and thus increasing the risks of him finding out via alternate means.

29. However, it is C’s current age and stage of development that leads me to consider that he is best told now, rather than as he enters the pre-teen phase and puberty. At this age, C is still a young child, and whilst he is developing an increased understanding of the world and is more able to understand more complex information, his thinking remains relatively uncomplicated. Children are better at dealing with life events at this age, because they have a lesser sense of permanency as they tend to live in the moment. From a cognitive standpoint, the information shared is likely to have less of a devastating impact that if C were older. He is more likely to overcome initial feelings of shock and distress than if he were entering the pre-teen or teenage stage of development, where the advance of puberty can bring about real emotional turbulence, that would compound any initial emotional response. Further, an older child is increasingly likely to experience a sense of loss of trust in a parent at not having been told sooner.

  1. She says that the idea of telling C soon, as she recommends, that AB is not his genetic father but leaving it until later to tell him who X is, runs two particular risks:
  2. i) The risk of C feeling that information is being kept from him;

ii) Doubling the pain by having to tackle two related issues at times that are chronologically apart.

Much better, she says, to tell him it all in one go and combine it with the reassurance that nothing will change in his life and that AB is still his psychological and social father.

  1. She says that the parties have done well in limiting C’s awareness of the animosity between them and the extent of the legal proceedings. She says that mitigates the danger of him being damaged by the continuation of proceedings if C’s paternity and X’s identity are revealed sooner rather than later.
  2. The guardian accepts that it may be that C will not want to know the identity of X. In that case she says, he should not be told until he wants to know

Those are some very tricky competing issues.

  1. The law
    1. Perhaps surprisingly, there appears to be no reported case where these particular issues have arisen before. There are, however, a number of cases which have clearly established that it is in a child’s interest to know the truth of his paternity. As Hedley J said in Re D (paternity) [2007] 2FLR 26 at paragraph 22

The general approach is that it is best for everyone for the truth about a disputed paternity to be known. The classic statement that is to be found in the judgment in the Court of Appeal in Re H and A (children) [2002] 1FLR 1145. I acknowledge once that that should be the guiding principle in all cases with which the court deals. It has obvious merit, not least the general proposition that truth, at the end of the day is easier to handle than fiction and also it is designed to avoid information coming to a young person’s attention in a haphazard, unorganised and indeed sometimes malicious context and a court should not depart from that approach unless the best interests of the child compel it so to do.

  1. I apply the provisions of s.1 Children Act 1989 and C’s welfare is my paramount consideration.
  2. The parties
    1. I need say little about AB and CD. They are both plainly highly intelligent. Each accepts that the other is a devoted and committed parent to C. The mother says that she is devastated and full of remorse for the situation that she has brought about and I accept that her remorse is genuine.
  3. AB has been put in a dreadful position. He is beginning to reconcile himself to his position but in my judgement he remains full of controlled anger.
  4. The guardian gave thoughtful and helpful evidence. It is no criticism of her to say that I think she had not foreseen the range of difficulties that this case presents and that to some extent her evidence was given on the hoof as she was made to confront problems in the witness box which she had not previously thought through. The same can be said of the other parties whose positions evolved throughout the case.
  5. My approach
    1. This is an acutely difficult matter and I approach it with humility, aware that different tribunals might reach different decisions on this matter of such importance to the parties.
  6. The starting point is that C must be told sooner rather than later that AB is not his biological father. I agree with the guardian that he is at an age when it will be easier for him to accept than it will be when he is older. I agree also that the risk of him hearing rumours from others is a real risk which needs to be avoided if possible.
  7. The much harder issue is that relating to the disclosure of X’s identity. The guardian says that in an ideal world the two issues would be dealt with in one go and I entirely see the logic of that. The difficulty is that X is completely unaware of these proceedings and what is going on in them. It is not possible to know how X will react and thus no one can tell C whether X will want to play any role in his life or even meet him. There are all sorts of possibilities; to name a few obvious ones:
  8. i) He might deny paternity;

ii) He might decline a DNA test. The court has no power to compel him to have one;

iii) He may want nothing whatsoever to do with these proceedings. Indeed, he may not even reply to any communication that is sent to him;

iv) He might on the other hand wish to play a role in C’s life;

v) He may have very strong feelings himself as to whether his identity should be disclosed.

His reaction will impact on what is told to C.

  1. By the end of the case AB and the guardian both argued that the two issues of disclosure of AB’s non-paternity and the identification of X should not be split. If that meant a delay before C was told anything so that X’s stance could be ascertained, then so be it, although the delay should not be excessive. Only with a knowledge of X’s stance could a full picture be given to C. The mother remained of the view that the two issues could and should be split.
  2. It seems to me that it must be wrong to disclose X’s identity until answers to the questions that I have mentioned above are known. I have therefore drafted a letter to X which will be sent to X seeking answers. The contents of the letter have been provided to counsel for their comments and will be the subject of amendment.
  3. CD and the guardian both say that X must be told of the existence of the Queen’s Bench proceedings. It would be wrong to hide from him that he may be catapulted into such proceedings. I regard it as unfortunate for C that X’s attitude to C might be influenced by this threat and I hope that AB will give further thought to the value of those proceedings in the context of their effect on C.
  4. The consequence of the delay in imparting information to C is that the parties may lose the advantage of the imminent approach of the summer school holidays which would permit C to be told but then be able to experience for himself that nothing had changed in his relationship with AB with whom he would be spending three periods of about one week each during the holidays. It would give an opportunity for C to realise that AB will not suddenly disappear from his life or his role be diminished. In term-time AB will be less available.
  5. AB suggests that I should require X to reply to the letter sent to him by the end of this week. That is completely unrealistic, especially as the terms of the letter have not even been finalised. X must have the chance to assimilate what he is being told which may come as a total shock to him. He is entitled to give a considered view and to take advice.
  6. I therefore propose to list the matter before me in about 5-6 weeks’ time by when I expect X to have responded. AB accepts that a further delay may be needed, depending on X’s reply. The delay is the inevitable consequence of dealing with matters holistically, rather than decoupling the two issues.
  7. I have at times been attracted to the mother’s proposal that the two issues should be separated but I am persuaded that it is more in C’s interest for the parties to be better equipped to answer such questions as he might ask.
  8. How the news is broken to C must be very sensitively handled. The parents think that they might be able to do it together. The guardian is less optimistic. Her proposal is that CD should tell C the news by reference to the agreed script and that later the same day AB should reinforce it. I think that is probably right but further guidance should be taken from the expert who will be assisting them through this process and who will be able to gauge their reaction to it.
  9. Each party has made suggestions as to what C’s wishes might be. The only certainty is that the news will be unwelcome. It is not possible to surmise beyond that.
  10. It is essential that the orders that I make are buttressed in a number of ways. First, AB’s position is to be strengthened by the grant of parental responsibility to him and a “spend time” order. I am pleased that this is agreed.
  11. Steps need to be taken to mitigate the lack of communication which exists between the wider family. It is very bad for C that arrangements for him to see his paternal cousins who live just a few doors away are made through staff rather than directly between family members. Likewise, steps should be taken to try to obtain some form of working relationship between the parents as to the arrangements for C. They have agreed to use an app and to accept mediation.
  12. I have little doubt that in so far as the fact that C is not the genetic child of AB has reached the public arena that has happened through disclosure from AB or those he has told. Both his sense of anger and the mother’s sense of shame make it far more likely that he or his side is the source.
  13. If the time comes that I direct that X’s identity should be disclosed I will have to consider carefully how the information is to be used and to whom it will be given. I will wish to restrict its circulation as far as possible. I am anxious that the information is used for C’s benefit and not for any gratification of a desire for revenge.
  14. I therefore order as follows
    1. a) CD shall forthwith disclose to her solicitors the name and contact details of X.

b) The solicitors shall by 5 July write to X a letter in agreed terms which shall require a reply by 2 August 2019.

c) The matter shall be listed for a 2 hour hearing before me no later than 16 August 2019.

d) In the event that the parties agree that the hearing cannot be effective it shall be vacated and relisted.

e) At the next hearing or on paper in the event that the hearing in August is vacated consideration will be given to giving directions for the hearing of the mother’s strike-out claim in the Queen’s Bench proceedings.

And so to part 2,  X’s identity having been given by mother to her solicitors, and X having been written to about what was happening.

ii) X has responded to the letter sent to him at my direction. To put it shortly, his response has been that he does not recognise the jurisdiction of the courts of England and Wales to deal with this matter and says that the allegations “have no iota of truth whatsoever”. He says he is shocked that there are proceedings that involve his identity and reputation and reserves his rights in this regard.

  1. This response was one of the possible answers that I predicted at paragraph 40 of my earlier judgment.
  2. In determining the issues in relation to the disclosure of paternity I at all times have as my paramount consideration C’s best interests.
  3. In the light of X’s denial of paternity the mother asks me to revisit my decision as to the disclosure that H is not C’s father. I decline to do so. All the reasons that I set out in my first judgment still pertain. It is only a matter of time, probably fairly short time, before somebody says to C that H is not his father. Too many people know for the matter to be kept hushed up. There is no prospect of this issue being smoothed over and it remains far better that it is managed so as to minimise the potential damage to C.
  4. X’s answer has not eased my task. It means that if C was to be told the whole truth he must be told that whilst his mother has named X as his father, X denies it. This brings with it the scope for C to feel abandoned and rejected. Those feelings may or may not be mitigated by the fact that H has, since June, reached the decision that he still wishes to remain in all senses C’s psychological father.

 

With that in mind, the Court made this decision  (Ms Ware was an independent social worker instructed to assist in the case)

 

  1. I have decided that the best answer is to say that the mother must reveal the identity of X as and when Ms Ware says to the mother that C should now be told the identity of X. At that time, and not before, H must also be told of X’s identification. I make it clear to the parties and Ms Ware, who will receive a copy of this judgment, that the time at which C should be told of X’s name is one that cannot be predicted. It may be a very short time or it may be years. It will all depend on C’s reactions and needs.
  2. I share the guardian’s view that C must not feel that information is being kept from him and that to do so would be harmful to him. But, what is known now and was not known before, is that X denies paternity and wants nothing to do with C. Matters must be approached at C’s pace.

 

AB at this hearing, having decided that he wanted to play a continuing part in C’s life as his father, had withdrawn his financial claim for recompense from CD for the sums paid to maintain C when the couple were together, although deceit would still be a part of the ancillary relief claims.

Is a link a publication?

 

In the case of Medway Council v Root 2019, a mother was found to be in contempt of Court orders prohibiting her from publishing certain items about the care proceedings and her children, and having previously been given suspended sentences for earlier breaches, was given a nine month custodial sentence.

 

The eldest child had written to the Court expressing unhappiness as to the information the mother was placing about them and the siblings on the internet.

The point of law arose on one alleged breach – the judgments are published and on Bailii and anonymised.

 

The Reporting Restriction Order said this:-

AND it is permissible to publish the [five judgments of 17/07/2017, 18/07/2017, 30/08/2017, 15/03/2018 and 11/05/2018] save that the judgments are not to be published:

in conjunction with any other material that names the children or identifies them by photograph or any other image; or

on any online page containing any other material that names the children or identifies them by photograph or any other image where the existence of that material is known to the publisher.

 

The mother was said to have published material identifying herself and the children, with a hyperlink to the judgment.

Was that publishing the judgment?  (Mr Elliott was for Medway, Mr Dean was for Ms Root)

 

 

  1. In relation to the issue of the hyperlink both counsel agree there is no binding authority on this issue in this jurisdiction in the context of contempt. Mr Dean’s assiduous researches have produced two cases from other jurisdictions; a decision of the Canadian Supreme Court (Crookes v Newton [2011] 3 S.C.R. 269) and an Australian decision of the Supreme Court in NSW (Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350). They both involved defamation actions. Crookes concerned an action against the person who owned and operated a website which posted an article which contained shallow and deep hyperlinks to other websites which in turn contained information about the applicant, two of which the applicant alleged connected to defamatory material. In Visscher the applicant sued the owner and operator of a website that contained information on the website and a link to an article, both of which the applicant alleged was defamatory.
  2. In Crookes the majority judgment was given by Abella J. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references in that
    ‘[30]…both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.’

She concluded that

‘[42] …making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should the content be considered to be ‘published’ by the hyperlinker.’

  1. Whilst McLachlin C.J. and Fish J agreed with the majority ‘substantially’ they considered a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a web site is not enough to find publication. Deschamps J observed that excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. The blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
  2. In Visscher there was reference to the judgments in Crookes but Beech-Jones J considered that decision was not consistent with Australian authority and that the approach of McLachlin C.J. and Fish J in Crookes ‘[29]…can be readily adopted to circumstances in which a person is alleged to the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some other form of ratification of the content of the hyperlinked material’
  3. Mr Elliott relies on the Visscher case submitting that the court can, if the circumstances of the case permit, find that the hyperlink equates with publication of the judgment. Mr Dean prefers the analysis in Crookes which he submits is more clearly reasoned and was not bound by any domestic authority.
  4. Whilst acknowledging both of these cases have to be viewed in the context of the proceedings they were concerned with, namely defamation, and, in any event, are not binding on this court I prefer the approach taken in Crookes in that making reference to the existence of something by hyperlink, without more, is not publication of that content. As Abella J observed the hyperlink communicates something exists but a further act is required before access is gained to it. In Visscher the factual position was different in that the website contained an article on the website as well as the hyperlink (indicating some adoption or promotion of the content of the hyperlinked material) and there was previous Australian authority that reached an analogous conclusion. That previous Australian authority cited an English Court of Appeal decision (Hird v Wood (1894) 38 Sol J 234) which was said in Visscher to be an example of a person approving, adopting or promoting a defamatory statement of another and thereby accepting responsibility for it. Mr Dean rightly referred the court to this decision but it does not assist in the situation this court is dealing with, as the context was limited to what facts could be left to a jury in a defamation action. I accept it could be said that the publication of the judgment citation together with the hyperlink is sufficient but, in my judgment, that does not equate with publishing the full judgment in connection with any identifying information relating to the children. It comes very close, but in the circumstances where this court is dealing with in proceedings involving contempt the position needs to be unambiguous.
  5. In the future when considering orders such as those made in this case it may be sensible for the court to actively consider whether there should be an express prohibition of publication of hyperlinks.

 

 

Allegation 1 – on 27/6/18 Ms Root published a link to the judgment of Mrs Justice Theis from 15.3.18

  1. This is based on the screenshot of a Facebook page with Ms Root’s name on it, with her photo (which is one of the profile pictures) on a page which contains other material featuring Ms Root (such as a video posted on 6 December 2017).
  2. Even if the court accepts this is Ms Root’s Facebook page the issue in relation to this allegation is does the posting of the hyperlink amount to a breach of the restriction in the injunction order and the RRO to ‘publish’ the judgment in conjunction with material that names X or Y (which the Facebook page does).
  3. Mr Elliott submits this is sufficient, when taken with everything else, for the court to conclude, if the court is satisfied Ms Root put the hyperlink there, she was publishing the judgment in circumstances where there was material identifying the children. That is how it is set out in the committal application why that amounted to a breach; in paragraph 1 (c) he nails his colours to the mast of the second part of paragraph 16 of the RRO. In his written and oral submissions, he sought to submit that Ms Root can’t have it both ways in that if it did not amount to publication, it was caught by the first part of paragraph 16 of the RRO as being ‘any information or details’ in relation to the hearing on 15.3.18.
  4. Mr Dean submits that the requirements of rule 37.3 make it clear there is a mandatory requirement on the applicant in committal applications to set out separately each alleged act of contempt. It is not appropriate or fair for the applicant to put the case in a way that is not set out in the application. Mr Elliott prays in aid the guidance given by Lord Woolf MR in Nicholls that the court should consider what prejudice there is to Ms Root when the position had been made clear in the skeleton argument.
  5. I am satisfied this breach is not proved to the required standard, for the following reasons:
    (1) It is clear the applicant’s case is founded on the hyperlink being a breach of the prohibition to publish, in both the injunction order and RRO. It says in terms under the reasons for this amounting to a breach Ms Root was ‘expressly forbidden from publishing this judgment’ (para 1A) and similar in para 1C. There is no mention or reference in the relevant part of the application to being prohibited from ‘publishing…any information or details’ and Mr Elliott did not apply to amend his grounds.

(2) Whilst there may be an argument that publishing a hyperlink does equate to publishing the judgment that has not been decided before in this jurisdiction. I consider there is some force to the argument (as accepted by the Supreme Court of Canada in Crookes) that a hyperlink is a reference to the existence and/or location of the content, rather than publication of that content. To get to the content, a further step needs to be taken, namely, to click on the link. It is arguable that without clicking on the link there is no publication of it.

(3) I agree with Mr Dean, that if there are competing arguments in an, as yet, undecided area of the law Ms Root should be given the benefit of that uncertainty.

 

As there is doubt, in a committal hearing the benefit of the doubt goes to the person who is alleged to be in contempt, so Ms Root was not in breach of the order prohibiting ‘publication’ of the judgments in connecting to the family.

 

As Theis J says, the orders will need to be drafted with precision if it is intended that someone cannot describe their case and link to a published judgment.

 

The case also sets out the detailed history and sentencing remarks.

https://www.bailii.org/ew/cases/EWHC/Fam/2019/669.html