the continuing saga of the Court of Appeal and Placement Orders (I make this 9-1 against in last 2 months)

Posted on October 24, 2013 by suesspiciousminds

Re R (A child) and R (Children) 2013

http://www.familylawweek.co.uk/site.aspx?i=ed119174

 

In this one, the LA had obtained Placement Orders for two children, with a plan of placing them together for adoption. The mother’s appeal against that order didn’t get heard by the Court of Appeal until a year after the orders were made, by which time, the landscape had changed, not only in terms of the developing jurisprudence but that the search for a placement together, whether that be adoption or long-term fostering had not been successful.

The Court at the time the Placement Orders were made had been adamant that the children had to stay together, no matter what.

The LA had already revoked the Placement Order for the eldest child (who is eleven now, and had been ten at the time of the Placement Order) accepting that they had no prospect of finding an adoptive placement for her. They took a pragmatic decision to revoke the Placement Order in relation to the youngest child as well (that child being five).

 

 In the course of mounting the appeal Mr Naish seeks to challenge as a matter of principle the judge’s decision to make a placement for adoption order, notwithstanding the fact that he gave the priority that I have already indicated to the need to keep the children together, and although the mother now has an extant application to revoke the placement order for N – that in fact is due to be heard next week before the court in Taunton – Mr Naish says as a matter of principle that, if the original placement order was not justified as a matter of evidence and law, it should be set aside and the mother should not be in a position of having to now apply to revoke the placement order, as she is doing. 

6. During the course of submissions this morning we have been greatly assisted by counsel, Mr Naish, but also Mr Powell for the local authority who, rather than solely addressing the legal issues which are raised in this appeal, have grounded their observations to this court in the reality of the fact that the situation which everybody hoped could be achieved when the case was determined in May last year now on the local authority’s case cannot be achieved.  It is not simply a matter of making a choice between placing the children together or separating them; the local authority says that there is no home available that could meet the first option of that choice, namely providing a home together.  It therefore seemed to us, as a matter both of trying to meet the welfare of the children but also the essential justice of the case and the need to respect the parents’ position, that it was appropriate now that, instead of applying to revoke the placement order, the whole question of whether placement for adoption for N was justified should be considered from a standing start, as it were, before the court, in the light of the circumstances which are so totally different from the ones that it hoped would be in place with both children settled in one home.

7. Mr Powell has taken instructions and he indicates that the local authority agree that the right way forward is for the placement order for N to be revoked and for such proceedings that now move forward in the Taunton County Court to be including, if the local authority choose to do so, a fresh application for a placement order which would be determined – and in particular the parents’ consent being determined – in the light of the circumstances as they now are.

8. We welcome that concession by the local authority; the local authority therefore do  not oppose the appeal made in relation to N’s placement order, and Ms Taurah, on behalf of the children, similarly makes no opposition to that course.  Therefore it seems to me neither wise nor necessary for this court to descend to the detailed legal arguments that have been put before us by counsel in this unusual case.  For my part, I would simply accept that this is a pragmatic and child-centred outcome, which allows Judge Bromilow to re-evaluate N’s welfare in the light of the circumstances that now obtain, and so for my part I would allow the appeal and set aside the placement order that has been made in relation to N on 9 May 2012.

 

So more of a tactical retreat than the Court of Appeal granting the mother’s appeal, but I think one could guess which way the wind was blowing here.  The LA were probably also not wanting the Court of Appeal to get too heavily stuck into the issue of sibling placement and the Judge’s view that the children should be kept together ‘no matter what’, given that in the real world that had not been achieveable.

 

 

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Placement orders v Court of Appeal part 8

Posted on October 23, 2013 by suesspiciousminds

 

Re F (A child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1277.html

Another Placement Order overturned on appeal (not sent back for re-hearing this time). Although at first glance, this might look like something new, or a development of the post Re B changes to adoption law, it actually turns out to be revisiting existing law from 2008 and determining which of two categories the children in question fell into.

 

The Court of Appeal decided that this case had significant parallels with Re T (Children : Placement Order) 2008   :- sadly the links to Re T in the Baiili piece take you instead to the worlds of high finance, so am grateful to Jerry Lonsdale for this link

http://www.familylawweek.co.uk/site.aspx?i=ed1101   .

 

In effect, in Re T, although the original Court had decided that the best placement for the children long-term would be adoption, there were considerable uncertainties about whether such a placement was actually in the best interests of the child because there were uncertainties about that issue – there was some specialist intervention required first and that they were not suitable for an adoptive placement at that stage; and it could not be certain that they would ever actually be ‘ready’

The Court of Appeal overturned the Placement Order in Re T

    1. Hughes LJ gave short shrift to the idea that there should be no placement order if it was anticipated that there would be real difficulty in placing the child. He accepted that a placement order could be made even if there was a real possibility that an adoptive placement would not be found at all. He said that “mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order” (§17) and that:

 

“a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not.”

    1. The key passage of Hughes LJ’s judgment for our purposes is, in my view, §18. There he said:

 

“But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys’ best interests, because their needs could better be met by the kind of substitute family found only in long term fostering.”

  1. Accordingly, the court in Re T found that it had been premature of the judge to find that adoption was in the boys’ best interests and to make the placement order. Amongst the reasons that the trial judge had given for making the placement orders was that this would give the local authority the greatest possible certainty and flexibility for the future, enabling them to place the children at short notice (see §13) but those potential benefits were not sufficient to alter the outcome, as Hughes LJ made clear in §19.

 

In this particular case, the arguments before the Court of Appeal were whether the case before them had sufficient parallels with Re T to make it correct to overturn the Placement Order (as the parents argued) or whether the two cases were distinguishable on their facts i.e that it was a Re P case, which justified a dual approach of searching for an adoptive placement even though one could not be sure that one would be found and if not, the plan would become long-term fostering.  (You may recall from recent blogs there being some issue about whether Re P and Re B-S are incompatible with regard to that dual planning approach)

 

The critical difference is this

1. If what you are saying is that  it is too early to say that adoption is in the child’s best interests  (if so, Re T applies and a Placement Order ought not to be made)

2.On the other hand if what you are saying is that  an adoptive placement might not be found for this particular child because of the characteristics or features of the child, but that it is worth trying to find one (If so, it is a Re P case, and a Placement Order could be made if the other statutory requirements were made out)

 

There is a helpful clarification from the Court of Appeal in N S-H v Kingston upon Hull 2008

http://www.bailii.org/ew/cases/EWCA/Civ/2008/493.html

 

“In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all.”

 

So, if the child is NOT YET ready to be adopted and there are some intermediate steps, a Placement Order should not be made, and the LA should carry out that work, and make an application for a Placement Order if the work places the child in that position of being ready to be adopted.   That does lead to the potential gray area that if the preparatory work is going to take about the same time as the search for an adoptive placement, following this line of authority would mean the child being ready for adoption, but having to wait for the litigation to make the order.

 

Back to Re F  (apologies for the amount of law involved in that, this is rather a tricky situation)

    1. We can see from the justices’ reasons that Mr Cranfield, who has appeared for F at all stages of this case, submitted to the justices that it would be premature to make a placement order “because of the uncertainty surrounding the therapy [that L needed] and its duration and outcome”. He cited Re T and NS-H v Kingston-upon-Hull City Council and MC to them but they felt that the present case differed from those cases “in that the Local Authority have a clear, long term plan for adoption which includes the provision for adoptive parents to be involved in L’s ongoing therapy”.

 

    1. In their resumé of the evidence, the justices said that all the professionals involved in L’s care agreed that adoption would give her the best opportunity of security and permanence, that the adopters would need to be highly skilled, that it may therefore take some time to identify appropriate adopters and that delay needs to be minimised in L’s best interests. They also recorded that the guardian had agreed that LA needed to start the search for adopters as soon as possible so that they could be drawn into the therapeutic process with L. They concluded that it was in L’s best interests to make a placement order so as to give LA the earliest opportunity to identify an appropriate adoptive family for L.

 

    1. Absent from the justices’ resumé, however, was any reference to the evidence of the psychologist that it would not be known until some way into the therapy whether adoption would ultimately be in L’s best interests.

 

    1. Dealing with the appeal from the justices, Judge Orrell carefully set out the evidence that the psychologist had given, including that the programme of therapeutic parenting that L needed was designed to strengthen the bond between her and her carer which “inevitably leads to serious questions being raised as to whether it would be in L’s interests to be moved and indeed, if she would cope with such and settle in a new placement”, that “a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers”, that “it is difficult to make predictions or recommendations at this point”, and that one “can’t really know until about 12 months elapse whether the child can be moved or placed elsewhere”.

 

    1. The judge commented that it was quite difficult to ascertain the burden of the evidence before the justices and he reminded himself of the advantage that the trial court has over the appeal court in that it has seen the witnesses. He distilled his own summary of the psychologist’s recommendations. It is notable that it makes no reference to her evidence, which he had cited earlier in his judgment, that it would not be possible to say until some way into L’s therapy whether a move to adopters would actually be in her best interests.

 

    1. At §33, the judge correctly isolated the essential issue in the case as being:

 

“Whether, on the one hand, the Justices were entitled to say that, at the date of the hearing, adoption was in L’s best interests so that she ought to be adopted, notwithstanding that important work had to be done with her prior to placement and after placement and that finding a suitable adopter might be very difficult and might be impossible or, whether on the other hand, important work had to be done with L at the end of which (and only at the end of which) it would be known whether an adoption was going to meet her needs or whether long-term foster care with skilled carers would meet her needs better.”

 

One can see that the possibility that this was a Re T case, in which it was too early to say that adoption was in the child’s best interests, was a live one. The County Court (having itself heard the case on appeal from the Magistrates) decided that this was a case where the Court was satisfied that adoption was in the child’s interests and a Placement Order was made (i.e that it was a Re P case, not a Re T case)

 

The Court of Appeal disagreed with that analysis (and if one accepts the psychologist’s evidence, one is driven to the conclusion that this is indeed a Re T case)

 

    1. Despite the resourceful attempts of the LA and the guardian to persuade us that this case can be distinguished from Re T, I am afraid that I cannot see any proper distinction. However much agreement there was that adoption would be the most secure outcome for L if it was ultimately possible to place her, the clear evidence of the psychologist was that it would not be possible to tell whether adoption would in fact be the right course for her until some way into her therapy. The guardian was saying something not dissimilar in the passage of her evidence that I have set out above. Of course, when the question does come to be addressed when the appropriate point in L’s therapy has been reached, the answer is likely to depend not only on the progress L has made but also on what adopters are available. However, that does not detract from the bald fact that when the justices heard this case, the evidence was not such as to establish that L’s welfare throughout her life required adoption. This was not a Re P case because the uncertainty was not about (or not only about) whether adopters would be found, it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option.

 

    1. I have, of course, given careful consideration to the advantage that the justices had in that they heard the witnesses give evidence. However, they appear to have failed to take account of the manifest uncertainty over what would turn out to be right for L, as did the judge as can be seen from his omission of this element of the psychologist’s evidence from his summary. This uncertainty was central to the determination of the placement application. On the facts of this case, in my view it was wrong to have granted the placement order.

 

    1. I acknowledge that there are disadvantages in LA not having a placement order. It will almost inevitably be more difficult for them to encourage people to put themselves forward as prospective adopters for L and we were told that they will not even be able to find out what resources adoption agencies have available. However, the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Secondly, granting a placement order in circumstances such as those which prevail in this case would also have undesirable consequences as Mr Cranfield pointed out. When the time comes to determine whether or not adoption is the best plan for L, there may be room for considerable debate but there will be no obvious forum for that. LA would have no obligation and, subject to the possibility of applying for the revocation of the placement order, possibly no power to return the matter to court. The guardian’s role would have ended with the making of the placement order. As for the parents, in order to play a part in the decision, they would probably have to seek leave to apply for the revocation of the placement order. To obtain this, they would need to establish a change of circumstances and I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset.

 

    1. It was for these reasons that I reached the clear view that a placement order should not have been made and that the appeal should therefore be allowed.

 

  1. It follows that the placement order made by the justices and affirmed by Judge Orrell must be discharged. We considered whether the appropriate course would be to remit the case to first instance for the application to be reheard. However, until L has made some progress in therapy, it seemed likely that LA would remain unable to establish their case for a placement order.

 

For the first time, one of the many elephants in the room with the Court of Appeal’s rapidly developing jurisprudence on adoption was dealt with – saying that the best option was for the LA to apply for a Placement Order in due course if the child was ready for adoption, the Court of Appeal noted

I was dismayed to learn that public funding may not be available to the parents to contest such an application. I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child. 

 

That at least, is a sentiment I can wholeheartedly agree with, and one which possibly opens the door for a brave soul to drop hints to the Legal Aid Agency that a refusal of funding for a parent fighting adoption outside of care proceedings would be Wednesbury unreasonable.

Although this case falls slap bang in the middle of the biggest judicial recalibration on adoption of my lifetime, I think that it probably would have been decided this way even before Baroness Hale’s speech in Re B put the fear of God into the Court of Appeal.  It is more of a reminder / determination on the facts whether this was a Re T, or Re P case.

That reminder may lead to some curious arguments and submissions that “such and such a child is too damaged to be placed for adoption without preparatory work”.   It is not that uncommon to hear for example, that before the child could be placed for adoption there would need to be age-appropriate discussions and groundwork for the child about what that would mean, or that the reduction in the level of contact would be a necessary precursor. Does that mean that the child is not, at the time of making the order, “ready”?

So, how ready is ready? Does the child have to be ‘ready’ for adoption very shortly after the Placement Order is made? (i.e if a match were made in the next fortnight?)  Or does the child have to be ‘ready’ within the realistic timescales for identifying a suitable placement? Or something else?

 

 

 

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Unravelling the Triad

Posted on October 22, 2013 by suesspiciousminds

 

The judgment of Mostyn J in Lancashire County Council and R 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3064.html

 

This is an interesting one, particularly as it pulls together a body of medical thinking on the cluster of symptoms which normally end with a finding of a non-accidental “shaking injury”

 

The two features of the classic “Triad” which were present here were a subdural bleed in the brain of the child and retinal haemorrhages. One never wants to see those injuries in a child, and for a long time they have been warning indicators that whatever had happened to the child might require the Courts to become involved, not just doctors.

 

The judgment begins by saying that the LA involved were right to bring the case, that they would have been badly criticised if they had not done so, and though the Judge is disappointed that the fact-finding hearing took some eight months to get going he attributes no blame to any of the parties.

 

 

 

The local authority, who through Miss Heaton QC has conducted its case professionally, coolly, and responsibly, argues also that this was not a case of an assault coming out of a clear blue sky perpetrated by a man of unblemished character. Rather, they say that this father is a man with criminal convictions for unprovoked assaults who had at least once prior to the incident assaulted the mother by placing his hands around her throat. Since the incident he has done the same thing again. He had recently lost his job and they were all living in inadequate cramped accommodation. There were plenty of stressors here, it says, which in combination with the father’s aggressive and impulsive personality should lead me to disbelieve him and to conclude in conformity with Mr Newman (in particular) that this was indeed a case of abusive assault.

 

The medical evidence was not speaking with one sole voice

 

On the other hand, some of the medical evidence suggests that this was an assault, although it is fair to say that the experts do not speak with one voice. The expert consultant paediatric ophthalmologist, Mr Newman, believes it is very much more likely than not that these retinal haemorrhages, both in their type and plenitude, are indicative of non-accidental injury. The expert neonatologist, Professor Wyatt, believes it is more likely than not that this was a non-accidental injury, although his degree of certitude is far less firm. However each of these experts accepts that it is possible that the father’s explanation furnishes the true reason for the injuries. The expert paediatrician, Dr Samuels, and the expert paediatric neurosurgeon, Mr Richards, are more equivocal and each believes that the competing scenarios are equally likely.

 

 

The father’s account was that he had got up to tend to the child in the night and had tripped and fallen on the child.

 

 

 

 

It is agreed that the case really boils down to the question of whether I believe the father or not. If I believe his story that this was an accident where he tripped and fell when holding N then that is the end of it. That story is not incompatible with the expert evidence. Mr Newman, while believing it to be highly unlikely does not rule it out. The other experts, more or less, believe that it is about as likely as the assault theory.

 

 

The Judge summarised current medical thinking in relation to subdural bleeds and retinal haemorrhages, and this will be useful to anyone involved in such a case.  It has been some years since I was last involved in an alleged “shaking” injury case, and I cross my fingers that I never see another, but things have certainly developed very significantly since my last one. Underlining here mine for emphasis.

 

  1. Before I look at the individual contributions I wish to make some preliminary observations:-

i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous “triad” referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.

ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.

iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld’s famous apothegm about unknowns) “the more you know the more you know you don’t know”.

iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has published an article in the Journal of Forensic Sciences in November 2011 entitled “Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall”. This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:

“These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries”

 

 

There are a number of important things in those passages. Mostyn J makes the very good point that the CT scans and eye examinations tend to be done in cases where abuse is suspected or really serious injuries observed. One knows therefore that the symptoms are present in such cases, but what one doesn’t know is whether they may have been present in much milder cases, such as falls from short heights or accidents. 

 

Also that medical orthodoxy has shifted considerably in recent years in relation to subdural bleeds (the figure of how frequent these are in births made me blink, and I dare say it might make others do the same) and it seems that we may be at an early stage on the same path in relation to retinal haemorrhages.

 

 

 

The final expert witness was Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford. In his written report he stated that it is generally considered by most paediatric specialists who deal with infant head injury that low level falls described here do not cause acute subdural haemorrhages, and that a similar thinking applied in the ophthalmological world to retinal haemorrhages. Tellingly he stated that 12 months ago he would have agreed with this view but now he has had cause to doubt it. Only a very small percentage of children who suffer low level falls undergo specialist neuro-radiological investigation. Therefore it is possible that the incidence of low level falls causing subdural bleeding has been underestimated. Indeed in his own practice he had a child who fell off a sofa and who was perfectly well but because that child had a shunt in place it was felt prudent to have a CT scan to make sure that the shunt was working properly. To everyone’s surprise the CT scan showed a subdural haemorrhage. This case, and other cases encountered by him in his medico-legal practice, have led him to question the view that low level falls of the type described here does not lead to subdural bleeding. While he defers to an ophthalmologist in relation to retinal haemorrhages he drew my attention to the work of Gillian Adams to which I have referred which apparently will show that low level falls may cause significant retinal haemorrhaging. In the circumstances from a medical standpoint he could not determine whether the history as given is true or false on the basis of the medical features alone

 

 

There were four very heavyweight experts in this case, drawn from a variety of disciplines. Their evidence was necessary for the Judge to reach a proper finding, and one hopes that the drive towards less experts and faster resolution (remember, this finding of fact hearing took two months longer than the entire duration of proceedings that we are meant to be aiming for) doesn’t end with investigations of this type in future not being sufficiently thorough.

 

 

The Judge then drew these strands together, and considered the totality of the father’s evidence

 

  1. I therefore now state my final conclusions. I am of the opinion that a schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls. I agree with the submission made by Mr Storey QC that in some respects the medical evidence given on behalf of the respective disciplines is irreconcilable.
  1. I remind myself that medical science is always moving on. It was not that long ago that the bleeding of patients and the use of leeches was de rigueur. Given the striking differences of emphasis and approach by the two disciplines it would in my judgment be dangerous for me to judge this case predominantly by reference to the mainstream orthodox opinion of Mr Newman particularly where there is research in the wings which may question that orthodoxy. If Mr Newman had not made his contribution I doubt whether this case would have been pursued after the subdural reports were in. So my overall assessment of the medical evidence looked at in isolation is that it does not provide me with a sure or firm basis on which to conclude that it was more likely than not that these injuries were caused abusively.
  1. In my opinion the absence of any of the tell-tale concomitant injuries which so often feature in shaking cases is important in helping me to inform the judgment which I must make.
  1. I do not know how the medical profession will resolve the statistical conundrum to which I have referred. Obviously children who have suffered minor falls cannot be routinely scanned and tested ophthalmologically. But until the data referable to these minor falls has been assembled I do not see how a statistically valid survey can be undertaken which can authentically and rationally conclude whether such falls do, or do not, regularly give rise to retinal and subdural haemorrhaging. Further, in order for the empirical work to be sufficiently persuasive to lead to the very serious findings that are sought here there surely has to be a discrimination between short falls from a standing start and the sort of fall described here which must have involved considerable horizontal, vertical and rotational forces. Yet so far as I am aware no such discrimination is made in the medical literature.
  1. And so I turn to the credibility of the father. I do not form the same adverse view of him as a man and a parent as that advanced by the local authority. He has very obvious flaws; but he has qualities also. I judge him to be truthful in his evidence to me, but I have to be alive to the possibility that he is a highly accomplished liar capable of embellishing a pack of lies with convincing snippets of circumstantial detail and by affecting displays of emotion. However in this particular regard I am assisted by the stance of the mother who is represented by the highest quality counsel and solicitors. Having heard all the evidence, having received appropriate advice, and knowing the father better than anyone in the courtroom, she firmly believes that he is telling the truth.
  1. In judging the father’s credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here. Further, I do not accept that this was a family beset by stress. In fact the evidence shows that the family was living a mundane quotidian existence where the focus of attention of the parents was their beloved daughter.
  1. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely. On the other hand the father’s account is perfectly consistent with both the haemorrhages and the facial wounds. Mr Rowley QC submitted, that when looking at this aspect the process of logical reasoning known as Occam’s Razor favours the father’s case. I agree. Further, there are aspects to the local authority’s theory that are problematic. If N was crying loudly and incessantly, so much so that the father snapped and brutally assaulted her in the manner alleged, then why did these cries not wake the mother up? If N was crying loudly and incessantly why did the father not simply take her upstairs to her mother? No satisfactory answers to these questions were given to me.

 

 

[Of course, being trite, the last two questions are true of almost every case of physical abuse that is actually proven. We will never know why the other parent did not wake up, or why the parent who felt that they were about to lose it faced with an inconsolable baby doesn’t just walk away. I didn’t feel, personally, that the last two questions really add much. Nor would I necessarily want to see Judges placing huge weight on the underlined passage – the fact that mum believes dad isn’t all that helpful necessarily.  I can see why in this case, they added to a preponderance of evidence that was pointing towards exonerating the father, of course]

 

Despite those slight qualms about the final summation, this is a very rigorous judgment, drawing together some important strands and highlighting the tension between medical thinking on subdural bleeds and retinal haemorrhages and that there is research around or forthcoming which challenges the orthodox view on the latter.

 

This case is likely to be a good starting point for any lawyer faced with a case involving such injuries.

 

 

 

 

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Standard letter

Posted on October 22, 2013 by suesspiciousminds

 

For the attention of His/Her Honour Judge _____________

 

 

RE: The  ______________ Children Case number ______________

 

I am writing to apply on behalf of the Local Authority for an extension of time for the filing of final evidence. This evidence was due to be filed by Friday 25th October at 4.00pm. It is possible that the Local Authority will not be able to file this evidence until 4.21pm on Friday 25th October, and as a result of the Court of Appeal decision in Re W, I now have to apply to the Court for an extension to that deadline before it expires.

In large part, the reason for the deadline potentially being missed as that as a result of the Court of Appeal decisions in Re G, Re B-S and Re W (no, a different one) all of which are attached, stringent new requirements on what must go into the Local Authority evidence have arrived in rapid succession, and therefore not only is it taking social workers longer to write statements incorporating a wholly different way of analysing the welfare checklist, comparing the various options for placement and having to devise five care plans instead of one, it is also taking me longer as a lawyer to check those statements against the various requirements of Court of Appeal decisions which are coming at the rate of one per week.

In order to make this application, I have prepared a C2 form, raised a cheque, drafted an order showing how the delay will affect the timetable (hint, I have broadly taken the existing timetable and every time it said “4.00pm” I have changed that to “4.21pm”.   I also had to contact the three other parties to share this with them, they all had to obtain instructions and then send me a signed copy of the draft order back.  Fortuitously, every single one of them was in when they got my message, and their clients answered the phone calls and gave them prompt instructions. How wonderful.

Despite this being a consent order, it is still subject to judicial scrutiny and the Court is of course not a rubber stamp, so I have made provision for an hour of consideration (taking into account that the file has to be brought up, the matter looked at and an order drawn up and sent out). The very latest moment the application could be lodged was therefore 3.00pm.

As the Court office is not responsive after 2.00pm due to staffing cuts and austerity, I had to ensure that the order was lodged with the Court by 1.00pm, however as that is the lunchhour, I moved that back to 12.00pm. I was then informed that the Judges all sit from 10.00 until 1.00 and cannot be disturbed, so I invented a time machine and went back in time so that the application was formally lodged with the Court by 9.00am on Friday. That meant knowing that it was needed by Thursday afternoon, to give me time to get consents from all the other parties. Luckily, with my time machine, I knew a day and a half before the document was due that it would be 21 minutes late.  [However, I also peeked into the future and read your judgment from the final hearing, so I had some more tweaks to make to the statement, so it will be 4.22 pm now. Shall we start over, or are we just going to be cool about the additional minute?]

Thank you for your attention and I look forward to seeing the draft order approving the extension, which will of course arrive at 3.59pm or before.

 

 

[Dear Suesspicious Minds, I hear you have been doing those Sarcasm Managment Courses with “Living Without Sarcasm”  – how are they working out?

Oh, they’re AMA-Z-ING ]

 

Apropos of absolutely nothing, here’s a beautiful painting of a roman emperor

 

lovely painting by Waterhouse, nothing to do with anything, it just looked nice

lovely painting by Waterhouse, nothing to do with anything, it just looked nice

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It isn’t Re JB, it is Re C

Posted on October 21, 2013 by suesspiciousminds

The Court of Appeal case I talked about at the weekend, which decided that the original Judge had not been wrong in making a Placement Order (and thus showing that the Court of Appeal aren’t just going to say “no” to every single Placement Order) is now out on Bailli and is Re C (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1257.html

The predominant challenge to the Placement Order, both at trial and in the appeal came from the maternal grandmother, EB, who had sought a Special Guardianship Order instead. She had been assessed by the LA unsuccessfully but was supported by an Independent Social Worker.

  • The judge held ([70]) that there were “a number of very important points to be made in [EB’s] favour”. She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.
  • However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB’s suitability. These were:

    i) He doubted ([72]) EB’s ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be “confusing” for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

    ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB’s ability to manage.

    iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

    iv) He was concerned about EB’s relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG’s concern about a recent incident when J was taken to EB’s home and appeared to be upset.

    v) Finally the Judge pointed to what he described as a “lesser concern”. He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as “not a positive attitude” to the father. The judge later said that his decision was primarily based on the first four of the concerns.

     

  • Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:

    i) A suggested lack of emotional warmth from EB towards J;

    ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

    iii) An incident involving EB’s use of a knife in 2007 in a wholly different situation.

     

  • Having considered these matters the judge expressed his conclusions about EB at [80] as follows:

    “What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J’s] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J’s] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey

The Court acknowledged that the Judge had not carried out the sort of Re B-S or Re G style balancing exercise, holistically comparing the relative merits of each of the options against one another, rather deciding the case in a linear fashion by dispensing with the mother, then grandmother and thus leaving adoption as the only option ‘left on the table’ .   We know that the Court of Appeal have recently determined that this is wrong and that many (I count seven) Placement Orders have been refused or sent back for re-hearing on that basis.

The Court identify that the structure of the judgment is badly flawed

  • I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is ‘linear’ in form, despite the fact that, at paragraph 63, the judge identifies

    ‘one alternative here is the local authority’s care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J’s best interest. To decide that I have to look at the alternatives.’

    What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

     

  • Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of ‘approving a care plan for adoption’ by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.
  • By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.
  • The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages (‘care order’ and only then ‘adoption’), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind

However, it seemed that the Court of Appeal did not feel that the decision itself was the wrong one, and thus find themselves between a rock and a hard place. On the one hand, the principles of Re B-S haven’t been adhered to, on the other, the final outcome appeared right to the Court of Appeal. Should they send it back for re-hearing because of procedural flaws, or take a pragmatic approach that despite those flaws the right decision was made?  (Arguably, how CAN the right decision have been made if the process was so flawed? )

The Court of Appeal thus had to do some rowing  (both in the debating sense of the word and the moving oars in a boat metaphor sense) to help retrieve the position.

  • In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:

    a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

    b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

    c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

    d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J’s welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

    e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB’s ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child’s best interests.

  • In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge’s decision was proportionate and, in the context of J’s welfare, is not ‘wrong’. As a result of those conclusions, I would dismiss this appeal.

I see a future of Local Authorities waving this decision and parents waving Re B-S.  The tranche of post Re B-S appeals is going to be vital in understanding whether the Court of Appeal requires perfection in terms of the holistic balancing exercise, or whether as here if the Court of Appeal can look at the judgment and deduce that a holisitic exercise would have achieved the same outcome the Judge was not wrong.

I am slightly surprised that the Court of Appeal didn’t lay down a marker that this case was considered exceptional because not all of the key judgments had been available to the trial judge at the time of making his decision (although that didn’t prevent the other seven cases) and that for all cases where judgment was given post Re B-S, the expectation would be that any judgment that did not follow those principles would be likely to be wrong. Despite my surprise, the judgment DOES NOT DO that, and is thus arguably authority for the Court of Appeal looking beyond the mere structure of the judgment and into the facts of the case to see whether the decision itself appeared ‘wrong’

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Unreasonable behaviour – Weatherfield style

Posted on October 21, 2013 by suesspiciousminds

(No-TV-Neville, this one won’t be for you. Nor anyone else who doesn’t know who Leanne Tilsley nee Barlow nee Battersby is)

NOTE ON FILE  –  From District Judge Sharples to Her Honour Judge Tanner – unreasonable behaviour petition received, think you need to run your eye over it. A bit hard to call

I, Leanne Tilsey (The Petitioner) seek to divorce Nick Tilsley (the Respondent) on the grounds of unreasonable behaviour. It is mostly adultery really, only it doesn’t count as adultery, because it happened before we got married.  It would have happened on our wedding night (25th December) only that wedding didn’t happen on account of how my mouthy sister Eva (who had previously slept with the Respondent) told the Respondent during the ceremony that that morning I had tried to engineer a reconciliation with my former husband, Peter Barlow, only to find that his new partner, Carla had got back together with him overnight.  Carla does not like me (probably because when I was working as a call-girl, her husband was a regular client of mine and when he kidnapped me and put me in the boot of his car, that accidentally led to his death)

Anyway, later on, I explained to the Respondent that I had not really wanted to get back together with Peter Barlow (having had an affair with the Respondent shortly before that first wedding to Mr Barlow, it was the Respondent that I really loved) and we therefore married on 31st December (there being no difficulty with licences or venues, that being such a quiet time of the year and so easy to get things organised)

What I had not known is that the Respondent, on the evening of the 25th December (that being the day that I had ruined his life in front of everyone who knows him by showing that on the day of our wedding he was second best to a man who smokes, is an alcoholic, ran off with another alcoholic and always looks like he could use a good bath – namely Mr Barlow) he got drunk on champagne and slept with his brother’s wife.  Whilst indupitably we were at that time ‘on a break’ having not gone through with our ceremony, it was his brother’s wife! That’s got to be unreasonable, right?

Well, if not that, then the fact that he never told me about it, and when his brother found out and tried to kill him, the Respondent was in a coma and I was by his bedside constantly, going through agonies.  And then it all came out at the christening of his brother’s baby (which does turn out to be the brother’s child, not the Respondents, although they didn’t know for sure till they did a DNA test). That MUST be unreasonable behaviour, even though it wasn’t his fault because he had agreed to keep it quiet and it was his brother’s wife who spilled the beans.

In case any of that is not unreasonable, I plead these two facts

1. Whilst in the coma the Respondent grew a beard and it absolutely doesn’t suit him.

2. He never laughs when I say to him “I just sold a car quick-quick” because he used to be in that advert.  (He’s the one with the ears who says “hee-hee” really badly)

Please give me a divorce, so that I can move on with my life and probably end up with Steve MacDonald at some stage in the future, everyone else I know has.

 

Oh, I forgot to mention that I should have custody of Simon, who is a child I was stepmother to in my relationship with Peter Barlow – I am no birth relative, but I managed to keep custody of him anyway. Nobody really knows who Simon’s mother is, she’s almost certainly dead. I’d check under the Barlow’s patio, to be honest – the two women in that house have been to prison already and the bloke who lives there [removed on legal advice]

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No wonder you’re late – why this watch is exactly two days slow

Posted on October 19, 2013 by suesspiciousminds

Yet more quest for perfection from the President. Mark this well.

 

Re W (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.

 

    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.

 

    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.

 

    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

 

    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.

 

  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

 

Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?

 

Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?

 

    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.

 

    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.

 

    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):

 

“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.

 

    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.

 

  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.

 

The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.

 

So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

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I’ll see your B-S and raise you JB

Posted on October 19, 2013 by suesspiciousminds

Sadly, Re JB (Children) 2013 isn’t up on Baiili yet, but it will be very important for anyone who is doing a case involving adoption.  It is Court of Appeal, and post-dates RE B-S – in one of those quirks, I think that when it was being orally argued, Re B-S was not out, but it was out and taken into account in the judgment.

You may remember some of these key points from Re B-S

1. Vital to have in mind the striking language used by the Supreme Court (for which read Baroness Hale) about proportionality in Re B

2. Linear approach (as in my last post) is out, and the Court have to look at all the options holistically

3. Judgment has to consider all of the advantages and disadvantages of each placement option for the child, with rigour

4. Can’t rule out the parents simply because that option requires more support than the LA wish to provide.

 

And we know that seven cases (so far) have had Placement Orders overturned and sent back for re-hearing for not following those principles, even though many of them weren’t in existance at the time the Court who made the order decided the case.

 

Well, in Re JB, the Court of Appeal identify that all of those features are lacking in the judgment. They also add in that there is a relative, rejected by the LA, effectively because the support that would be required would be too high.

What you would assume, therefore, is that the Placement Order would be overturned, and the case sent back for re-hearing, perhaps with some additional judicial guidance about prospective kinship carers and support and what Courts have to do when faced with a kinship carer who still seeks to care even when faced with a negative report from the LA.

No, the Placement Order stood.

In the interests of fairness, it will only be when the judgment goes up and I can draw out and quote how that decision was reached that we can hope to put it into context, but in a nutshell, the Court of Appeal seemed to feel that if the Court HAD done those things they would have reached a decision of Placement Order and there was enough in the judgment to make the Court of Appeal consider that the Judge was not wrong.

How that helps anyone call an appeal’s prospects of success now is very hard; and how a Court at first instance is supposed to look at these two authorities (not so much on the analysis of options but the ‘support’ and ‘nothing else will do’ options) is beyond me.

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Hamfisted analogy time!

Posted on October 17, 2013 by suesspiciousminds

 

Hello, good evening, and welcome to this first episode of TV’s newest gameshow “You’re going to get bitten by an animal – for money!” (c)

The rules are simple, we have three doors – A, B and C.  You choose a door. Behind each door is an animal, and you are going to get bitten by it. Then I am going to give you some money.  You don’t know how much money, the only thing you know is that the most money is for picking Door A, then the next highest is Door B and the lowest amount is Door C.  Now, it might be that the difference between Door A’s money and Door C’s is Fifty thousand pounds, or it might be fifty pence. You just don’t know.

The only rule is, that I will tell you what is behind Door A – you decide whether to choose that door, or reject it. If you reject it, we move on to Door B. It’s too late then to go back to Door A. If you have rejected Door A, and Door B, then and only then do you move on to Door C.  And you have to go through Door C and get bitten by that animal.  Door C is the last resort.

 

Okay, here we go !  Behind Door A is…..   A rottweiler

Are you going to choose Door A, or reject it and move on to Door B?  You don’t know what’s behind Door B – it might be better, it might be worse… that’s the gamble.

 

Assuming you’ve rejected Door A, we go on to Door B.  And behind Door B is….  a chimpanzee.

Are you going to choose Door B, or move on to Door C? The last resort door.  It could be anything – it could be a tortoise, it could be a hamster, it could be a grizzly bear.

 

And this is an example of why the Court of Appeal (notably McFarlane LJ  in Re G, and the President in Re B-S) have concluded that the linear decision-making model is flawed.  If one accepts that the test for Placement Orders is that they should be the ‘last resort’  (this being extrapolated by the Court of Appeal and Wall LJ in Re P, and expanded to ‘nothing else will do’ now – and it is the law, until either the Supreme Court, ECHR or some legislation say otherwise),  then you can’t just reject Door A (parents) and then Door B (extended family) and saythat Door C is the right option for the child and the last resort, just because its the only thing left.  As McFarlane rightly says, if you are going to proceed in a linear fashion and rule out options because they have deficiencies  and then go with whatever is left, you’d end up with the potential for the decision to have been different had you STARTED with Door C.

If, for example, Door C is the grizzly bear, suddenly that rottweiler behind Door A doesn’t seem that bad. You might well have picked Door A, had you known what was behind all three doors from the start.

 

In this example, you also only get to look at the disadvantages – what sort of animal it is that’s going to bite you, and not the advantages – the cash that’s on offer for being bitten. You need to see not only what the Disadvantage of picking each door would be, but also what the Advantage might be.  And you see that laid out clearly, for the range of options before you start deciding which to pick, Only then can you try to make any sort of rational choice.

So, whilst the decision in Re B-S that the social work final evidence has to lay out what’s behind every door – advantages AND disadvantages for each option and robustly analyse each, is going to be a huge culture shift and a massive pain in the neck to prepare, it’s one that makes a degree of sense, when you think about the exercise that’s involved.    {There are quite a few other things in Re B-S I have an issue with, and I’ll come back to those, but this one feels right, although it is making my life difficult at present}

 

 

 

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“Dual-planning in final care plans– does it exist post Re B-S?”

Posted on October 14, 2013 by suesspiciousminds

Cases in the County Court don’t often make it onto Baiili law reports (though at some impending future time they all will), but this one is interesting and potentially important, not least because it identifies a conflict between two existing Court of Appeal authorities.

 Re D-R (Children) 2013

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/5.html

 His Honour Judge Bellamy dealt with the case (he being a Judge who occasionally sits in the High Court, and a very competent crafter of an analytical judgment)

 The case involved six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applied for placement orders in respect of each of the five younger children.

 The parents accepted that they were not able to care for the children and that the threshold was crossed. No other family members were being put forward. The case, two months ago, would have been pretty simple. Placement Orders for the younger five children, Care Order and long-term fostering for Ian.  Most of the debate would have related to contact, and particularly sibling contact between Ian and his younger siblings.

 However, in our new landscape, two interesting questions emerged.

 

  1. As, in order to make a Placement Order, the Court must be satisfied that “nothing else will do”, what happens if the judicial analysis of the advantages and disadvantages of adoption v long-term fostering come down on the side of adoption being a better placement outcome for the child, but NOT to the point where long-term fostering could be dismissed as a potential option that on analysis “will not do” ?

 

  1. Does the fairly common care plan of “search for adoption placement for six months under a Placement Order, and if not successful search for long-term fostering”    (dual-planning, as endorsed by Wall LJ in Re P) stand up to Re B-S ?   If one is saying that ‘long-term fostering’ would do in six months, then how can at the same time one say that it is an option that will not do?

 

And tied into all that is what the hell “nothing else will do” means when the Court is considering all of the other options.  In order to say that “nothing else than adoption will do”  isn’t the Court in effect saying in relation to each of the other options that they “won’t do”   ? (rather than that adoption, taken in the round,  has advantages that outweigh the advantages of the other options for the permanent care of this child?)

 

If that is right, and it is certainly one reading of Re B-S, that in effect the Court of Appeal have determined that adoption is not an option available to the Court unless all of the other options are excluded on a careful comparison – adoption is off the table unless all other options are discounted

 

 then the fact that a Court might decide that it is by far and away the BEST option of the range available for this particular child counts for little or nothing. And where does that leave s1 of the Children Act 1989?  It seems as though a Judge might have to make an order that doesn’t feel like the one which is in accordance with the child’s best interests.

 

[My own take on that would be that it feels deeply uncomfortable for a Judge to decide that adoption is better for the child than long-term fostering and then have to go for long-term fostering IF you are looking at it in terms of the Judge choosing the ‘best option’,  but IF you flip that around and look at it in terms of the Judge choosing the ‘least worst’ option, it probably works  – perhaps I’ve just been re-reading too much Daniel Kahnemann this week]

 

Whilst it was easy to frame Re B-S as being a conflict between adoption and parents as the options, it may be that the harder tussles are between adoption and long-term fostering.  There are many arguments that can be deployed about why adoption for a particular child is better for that child than long-term fostering (and vice versa) but limited arguments that would allow long-term fostering to be discounted as an option that “will not do”

 

In this case, Re B-S had arrived in fairly close proximity to the hearing, and the Local Authority final evidence had not as a result contained the analysis of the options now required. The Judge considered an adjournment but instead decided that the analysis could be drawn out of oral evidence, cross-examination and submissions.

 On the first issue, of what happens where adoption looks preferable to long-term fostering, but it cannot be said that long-term fostering “will not do”

 I have underlined the critical passages

 99.      Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
{I have snipped the balance sheet exercise for pacing, but it is worth a look}

 
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.


105. Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.


106. In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.


107. On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.

 

On the dual-planning issue

 

88.      Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).

 

Re P is undoubtedly a very strong authority for sanctioning a dual-planning care plan of the type “Look for adoption placement for six months, and then long-term foster if not successful”  – it is a Court of Appeal authority, the former President gave the judgment – it gives the practice ringing endorsement and deals with the topic in detail, and it absolutely isn’t up to a County Court Judge to decline to follow that precedent when the issue is absolutely on point.

 

The obvious issue, as the Judge went on to raise, is that if in order to make a Placement Order the Judge has to say that long-term fostering won’t do, then approving a plan in which long-term fostering is the back-up seems to conflict with that.

 

I.e there is a tension between Re P and Re B-S. Both Court of Appeal authorities.  Added to the complication is that the Court of Appeal in Re B-S specifically looked at Re P and quoted it approvingly (though not on this particular dimension) so they clearly did not determine that it was no longer good law  (if indeed they could)

 

112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.


113. That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?


114. I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)

‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”’

 

I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.


115. If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.

 

 

 

I have a suspicion here that the higher Courts, maybe even the Supreme Court, are going to have to look at the tension between Re P’s endorsement of dual-planning and the logical consequences of Re B-S that if long-term fostering is a viable option for a child, you can’t make a Placement Order just because adoption is a preferable option.  And that perhaps by publishing this judgment, the Judge had in mind that this issue needed to be brought into the light to be scrutinised.

 

(In the meantime, I don’t think I’m minded to run any dual-planning final care plans)

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