Court of Appeal two decisions about remote hearings

Posted on April 30, 2020 by suesspiciousminds

The Court of Appeal had decided two cases about remote hearings in light of the Covid 19 public health emergency.

 

The first is Re A (Children) (Remote Hearings) 2020

 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/583.html

 

Where a Judge had decided that because the parents in the case could not really participate in a remote hearing, the parents should attend Court for the hearing in a physical building, whilst others attended via video-link  (what lawyers are calling a ‘hybrid’ hearing)

 

The Court of Appeal decided that on the facts of the case, the Judge was wrong to order a hybrid hearing and granted the appeal.  The Court of Appeal point out in painstaking detail that they do not intend in this case to give the impression that hearings in other cases should be remote, should be hybrid or should be adjourned, it is a fact specific case, not intending to give general guidance.

 

  1. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
  3. It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.
  5. Finally, in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.

They do say this:-

Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

 

 

The other appeal is, to my mind, more interesting. It deals with a remote hearing for an Interim Care Order and separation.  Those are hearings where the option of waiting for the end of lockdown isn’t necessarily available.

 

Re B (Children) (Remote Hearing : Interim Care Order) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/584.html

 

I have to say, even ignoring the fact that the hearing took place by telephone, this case is a breakfast that would be suitable for dogs.

 

It involved  a case where a boy Sam (not his real name) aged 9 was living with his grandmother. The LA made an application for a Care Order – on the papers they had filed they were not seeking removal.

  1. Accompanying the application was a substantial amount of documentation arising from the local authority’s knowledge of the family down the years, including a fully pleaded interim threshold document, a comprehensive chronology (16 pages) and a thorough template statement from the children’s social worker (34 pages). Of note, this described a close relationship between the children and their grandmother, with plenty of mutual love and affection being shown. Given the local authority’s position, the removal of Sam from home did not even feature in the social work analysis as a realistic option, let alone a preferred one. The case for an interim supervision order was put in this way:
    1. “Whilst [Sam] is not considered to be at immediate risk of physical harm, there have been historical allegations against his Maternal Uncle… who is known to still to be attending the home despite being prohibited by written agreements in place. [Sam] has suffered and remains at risk of suffering emotional harm due to the concerns [about] treatment of him by Maternal Uncle… and Maternal Grandmother.”

 

Lawyers will very quickly spot that the LA evidence was “Sam is not considered to be at immediate risk of harm”  (which is an essential ingredient if they are to seek and obtain an Interim Care Order.

The case was listed for hearing.   Just before the hearing began, the Guardian filed a position statement indicating that she thought Sam should come into care, and the LA changed their position to recommending that. There was no updating interim care plan, and no statement explaining the change in position.

Those representing the parents learned of the change in plan an hour before the hearing. Very understandably, they made an application for the case to be adjourned and set down for a proper contested ICO hearing with the parents having opportunity to respond to the LA case.

The Recorder dealing with the case was getting all of this evidence as a stream of updating emails, whilst wrestling with the other cases in his list. By the time this case came before him, he had been working all morning, and by the time he gave judgment he had been working for 10 1/2 hours, on hearings which were taking place by telephone.

Between 17.20 and 17.41 he gave an extempore judgment. At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April. At 17.57 the hearing concluded. By that time the Recorder had been working, almost continuously and mainly on the telephone, for 10½ hours. Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.

 

  1. We next mention the position of the Children’s Guardian. Her solicitor, having evidently carried out a lot of work in a short time, filed a six-page position statement at 10.49 that morning. We quote the concluding paragraphs in full because, as Mr Squire, who did not appear below, frankly asserted, “the Guardian has driven this in terms of immediacy” and because they represent the whole reason why an interim care order was made for Sam.
    1. “Guardian’s Position

25. The Guardian is very concerned with respect to the safety of both children given their cumulative previous experiences and the lack of emotional stability that they seemed to have experienced under a Special Guardianship Order. She is concerned that the maternal grandmother is prioritising the needs of the maternal uncle and aunt over that of the children, or is at least unable to protect them from abusive situations. Most concerningly, the children seem to be blamed when their behaviours are likely to be expression of the experiences they had, and/or additional needs that their care giver/s should be attuned to identify and respond to; [Samantha] being compared to her mother in derogatory manner and [Sam] being called names are particularly emotionally abusive behaviours in the context of the children’s own experiences.

26. There are concerns that maternal grandmother does not appear to be working openly and honestly with professionals since 2014 and it is noted that the written agreements have been breached on a number of occasions and allegedly the uncle reported that he was prompted by the grandmother to breach or ignore such agreements, and not talk to professionals. It appears as if the maternal uncle continues to be a frequent visitor to the family home and is reported to have been involved with the police 3 times this year in relation to drug offences [C25]. It is also not clear where the Mother is presently residing since her release from prison; the local authority statement refers to the children having had unsupervised contact with her.

27. The Guardian is concerned that both children are at risk of ongoing physical and emotional abuse. She is very concerned with the proposal by the Local Authority that [Sam] remain in the family home under an interim supervision order under the current circumstances, when there are severe limitations in what visits and intervention can be provided and uncertainty around how long pandemic-related measures will need to continue. It is not clear how his safety will be monitored as there are very little, if any, direct social work visits being undertaken at present; the presenting concerns cannot be effectively monitored via virtual visits. Schools often provide an oversight into a child’s wellbeing – however the schools are now closed and it is not known when they will re-open; they also often provide an outlet for both children and carers; being constantly at home can greatly escalate the current risks for [Sam], and limits his ability to reach out to professionals or safe adults outside the house for help. The Guardian is concerned that given these exceptional times it will be very difficult to monitor [Sam]’s safety.

28. It may be that [Sam] will be placed at more risk of emotional and physical harm if he is left alone in the family home. [Sam] has already stated that his family matters are confidential and it is therefore not clear whether he will actually disclose any concerns should they arise at the home; [Sam] may also internalise that violence is acceptable and risk perpetrating violence himself, or take matters in his own hands to protect himself or others, such as, for example, his grandmother if she is also subject to abuse from the uncle. The Guardian believes that both children need to be placed in a place of safety whilst assessments are ongoing.

29. The Guardian therefore supports interim care orders for both children. If the Court agrees that an interim care order is appropriate for both children, the Guardian would strongly prefer for both children to be placed in the same foster placement, if possible. A together and apart assessment to look at the sibling relationship and potential split arrangements for them in the longer term needs to be considered. There are also indication of severely distressed behaviours from the children, emotional regulation and ongoing attachment difficulties, which may require psychological assessment to ensure that the parenting they need to meet their individual needs is fully considered in care planning.”

  1. Once a Children’s Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. The court relies on Guardians to be independent in promoting and protecting the interests of the children in the litigation, and they may take, and not infrequently do take, a different position to that of the local authority. We acknowledge that, as commonly happens when an interim application is made at the outset of proceedings, this Guardian was having to absorb a mass of information at very short notice. She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am. In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children’s solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base. Neither of them had met or spoken to Sam or to his grandmother or his grandmother’s solicitor, nor did they have any information at all coming from that quarter. We also note that the Guardian was not available for the hearing in the afternoon. Her solicitor was said to be fully instructed, but the Guardian’s absence left her unaware of such arguments as Mr Lue was able to put to the court in response to her recommendation and deprived her of the opportunity to reflect.
  3. We are also troubled by the lack of any balanced analysis in the case for removal that was put by the Guardian, and also by the local authority. There is no reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation. There was no reference to Sam’s wishes and feelings about immediate removal, nor any reminder to the court that these were not known. There was no credible explanation for why there had to be an emergency decision. Mr Squire fairly accepted at no less than three points in his appeal skeleton argument that the outcome was “harsh”, though he defended it as not being unfair or unjust. When we asked him about the above matters he described them as a consequence of this being “an emergency application” in which child protection imperatives had to prevail. We reject that argument. The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam. We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category. Our overall observation in this respect is that unfortunately Sam’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed.
  5. The local authority had in our view taken a sensible position in seeking an interim supervision order, as reflected in its position statement at 10.37. Yet within the hour it had moved to seeking Sam’s immediate removal. Nothing relevant had happened to Sam in the fortnight between Samantha’s departure and the hearing. The only basis for the volte-face was the intervention of the Guardian. We asked Mr Melsa, for the local authority, about the process leading to the changed decision, which came to him in an email instruction when he was in the middle of an advocates’ meeting. We learned that the decision was undocumented and the change of plan unreasoned. There was no evidence about it and no care plan to underpin it. Not surprisingly that led to confusion. At 12.48 the other parties were informed that removal would not take place until Monday 6 April because Sam had a cough that might be virus-related. The social workers then tried to investigate testing, but were unsuccessful. Despite that, at 13.43 the local authority announced that its plan was again one for immediate removal.
  7. Our observation is that it is hard to describe this process as anything other than arbitrary. A local authority must always be responsive to the stance of a Children’s Guardian, but there was no good reason for the plan to have been changed in this case. The consequence was to wrong-foot the grandmother, with whom it was going to share parental responsibility for Samantha, at least in the short term, without any discussion with her. Mr Lue was, as he put it, unable to understand the decision-making process and was having to take instructions by telephone on a constantly moving picture. He gave us examples of matters concerning Sam in the social work statement and the Guardian’s position statement that he has since the hearing been able to establish that the grandmother simply did not accept (for example concerning the arrival of the uncle on 20 March). We were entirely convinced by his account of feeling, in his words, hopelessly unable to represent his client in the way he would normally be able to do. It says a lot that throughout the whole process not one page emanating from the grandmother could be placed before the court. She had no opportunity to file evidence in relation to this serious matter, nor was Mr Lue in a position to marshal a position statement. In cases of exceptional urgency that may be unavoidable, but here it was unfair.

 

 

In terms of the remote nature of the hearing itself

 

  1. The Recorder made some reference to these principles but he did not apply them. Our observation is that this was a case where the central concern related to emotional harm stretching back for years. On the information then before the court it could not in our view be plausibly argued that something had now happened to make Sam’s removal that evening necessary. The circumstances in which Samantha had been taken into foster care showed the need for Sam’s situation to be carefully assessed. The evidence did not remotely justify his peremptory removal and there is nothing in the judgment that is capable of persuading us that it did. Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court.
  3. There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April. Whilst it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available. Where that is the case, a video link is likely at this time to be the default option in urgent cases.

 

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Guidance for how to conduct remote hearings in Family Court

Posted on March 24, 2020 by suesspiciousminds

Very grateful to Gordon Exall of Civil Litigation blog for bringing this to my attention, and obviously a huge amount of work has gone into it by Mostyn J and MacDonald J.

 

Telephone hearings we are aware of and for short and reasonably non-contentious matters they are working well, but the issue facing us presently is how we do hearings where seeing the parties and assessing witnesses are to be done.

 

This document is not an ‘off-the-shelf’ solution, but it outlines the various challenges and solutions so that Courts can, with their local practitioners work out a scheme that works for them.  This probably is not going to be of interest to my non-lawyer non-Judge readers, its a long document and it is really getting into the nuts and bolts of how you make a hearing conducted electronically work.

 

But it is a piece of guidance that is going to save hundreds of hours of duplication over the country as individual LAs and local bar and Courts try to work out what is best for their area, and I’m extremely grateful for the work that has gone into it.

 

If you are ill, I wish you well, and if you are well, I hope you stay that way.  We are living through unprecedented times.

 

Click to access The-Remote-Access-Family-Court.pdf

 

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Diplomatic immunity and care proceedings take 2

Posted on March 19, 2020 by suesspiciousminds

 

I have previously written about the intersection of diplomatic immunity and care proceedings here.  (I mean, it is just nice to write the word ‘immunity’ without the word ‘herd’ in front of it this week…)

 

Care proceedings and diplomatic immunity

 

In that case

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html 

 

an allegation that a woman who worked for X High Commission had hit a child 40 times and shaved the head of another.  Knowles J decided in short that:-

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

 

In this case, Mostyn J was deciding a case in which the allegation was that the father, who was a diplomat, and the mother, had assaulted their six children with a belt and in relation to one child had hit her with a broken chair leg and that child had partially lost sight in one eye.   This being a Mostyn J judgment, it is carefully reasoned and gives a very interesting potted history as to diplomatic immunity, including this very specific recital to the first statute on the point

 

“Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty’s good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.”

 

It’s not quite as niche as Handel’s Naturalisation Act 1727 which applied to just one individual, but that is still a niche introduction

https://en.wikipedia.org/wiki/Handel%27s_Naturalisation_Act_1727

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/18.html

A Local Authority v AG 2020

The Local Authority sought Interim Care Orders, and the parents argued (without getting into the facts of the case that diplomatic immunity meant that civil proceedings could not be brought)

Mostyn J disagreed with the decision of the former President Lady Elizabeth Butler-Sloss in Re B 2003 and Knowles J in Re A Local Authority v X 2018 and that the diplomatic immunity did prevent civil proceedings being brought.  He cited the decision of the Supreme Court in In Reyes v Al-Malki & Anor [2017] UKSC 61, [2019] AC 735   (a case dealing with alleged race discrimination and employment law of a staff member of a Saudi diplomat. )

 

 

In essence, the only thing that could be done was to write to the FCO and ask them to liaise with the relevant country.

As discussed recently in the case about vaccinations, where a High Court Judge refers to an authority by another High Court Judge and disagrees with it, the law then shifts to be the latest decision  (unless and until another High Court Judge or a more senior Court disagrees with it).

Therefore, at the time of writing, diplomatic immunity means that child protection proceedings cannot be brought and the issue of whether or not the conduct occurred within the course of those professional duties does not arise.

 

I would anticipate an appeal in this case.  I don’t know which of Knowles J or Mostyn J is right   – I might possibly have my own view (legally, as indicated Mostyn J is now right and the relevant authority on the point) but it needs a Court of Appeal decision to let us know.

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Collar me, don’t collar me – I’ve got my spine, I’ve got my orange crush

Posted on March 9, 2020 by suesspiciousminds

 

 

I know that I say a lot ‘this is an odd one’, but yep, this is an odd one.

Committal proceedings arising out of private law proceedings (where a mother and father are disputing arrangements for the children between themselves).  There were allegations that the father was misusing drugs.

There were further allegations that the father was thwarting drug testing of his urine samples by

running the tap and placing the testing strip in hot water, stockpiling negative tests, or by carrying an orange squash solution which he would pour into the sample pot pretending it to be his urine.

 

Which reminds me both of Withnail’s cunning plan to procure a child’s urine so that he could drink drive and escape justice and of the Wire where Bubbles comes up with a similar plan to obtain a clean urine test from someone else for Johnny who was having to submit clean samples to escape prison, thwarted when Johnny reminds him ‘yo, Bubs, who the hell do we know who has clean urine?’

 

Anyway, within the proceedings, a hair strand test was directed.  What happens next is a little odd.

 

 

13                As I indicated earlier, the father was due to file and serve the results of hair strand testing on 1 September 2019.  That did not happen and there was a suspicion about that in terms of the lapse of time.  Suspicions were heightened when father’s solicitor indicated in a telephone call that father himself was due to send him the report in short order.

 

14                It is unusual for a represented party to arrange the hair strand test themselves and, ordinarily, the results would be sent directly from the service, provided to the solicitor for onward circulation to the court and the parties.  It came to be that the statement from Cellmark was eventually circulated by the father’s solicitors on 20 September 2019 and that statement was authorised by one Alistair Derrick, a forensic scientist employed by Cellmark.  The statement is dated 10 September 2019 and outlined that the father provided a sample of hair on 6 September 2019 of 3.6cm in length.  The result suggested that no substances were detected.

 

It’s a little odd, because normally the report comes TO the solicitor, who then sends it out to their client, rather than vice versa.

The mum, in full-on Wagatha Christie mode, spotted that the length of the hair sample was longer than dad’s hair….

15                There are a number of curious features about that report: namely indicating that the father’s hair samples were 3.6cm and that did not accord with observations by the mother in relation to his hair length at contact handovers.  It was also odd that the father’s statement, circulated on 24 September 2019, made no reference whatsoever to the drug test results, which is a peculiar omission given that his progress of contact largely depended on whether he could provide evidence that he was drug-free.

 

16                Those suspicions, coupled with the mother’s knowledge of the father’s historical untruthfulness, led the mother to requesting that her solicitor contact Cellmark to establish whether the report they received was legitimate.  To her dismay, and subsequently it became a substantial matter of concern to the Family Proceedings Court, the report circulated by the father was not the report prepared by them.  The report they prepared, in fact dated 26 July 2019, related to a sample taken on 12 July 2019.  The hair length was reported to be 1.5cm and the report confirmed that the result was positive for cocaine for the period covering the end of May 2019 to the end of June 2019.

 

 

In the words of Alexander O’Neal  – you’re a fake baby, you can’t conceal it – know how I know? Cos I can feel it

 

  It became apparent therefore, beyond doubt, that the father had resorted to the most extreme lengths by falsifying evidence for his own gain without any regard to the safety and welfare of Z.  I observe, so far as the court is concerned, that this type of deception undermines the system and devalues and seriously undermines the court’s ability to protect children in these circumstances.  It is a very serious issue.

 

18                There were a number of reports filed, and evidence filed subsequently, and it came to be that the father subsequently admitted that he did, in fact, change the witness statement of Alistair Derrick, and has described it as a serious error of judgment, and in these committal proceedings throughout has not tried to minimise his actions in any way and has been open in terms of what he has done and has shown true contrition and, furthermore, paid the mother’s legal costs throughout.

 

 

 

20                Matters came before the Family Proceedings Court on 1 October 2019 and there was an application to adjourn, and further directions were made for Cellmark to file their correct report of 26 July 2019, for a statement to be prepared by Alistair Derrick of Cellmark, and another statement from Cellmark in terms of the date of collection of the sample.

 

21                When the directions had been agreed in correspondence in advance of the hearing on 1 October 2019, the father subsequently admitted he had falsified the evidence and there was an attempt by him to retain the hearing as a final hearing, requesting that the lay justices consider this issue as part of their overall judgment.  This application was, to all intents and purposes, a complete waste of time and the justices were sufficiently concerned about the matter to refer the matter to a Judge for the consideration of contempt proceedings.

 

22                So it came to be, as is made plain from the recitals of the Magistrates’ order of 1 October 2019, that the matter came before me, and father was directed to provide a statement.  There was some difficulty, it was provided in manuscript; it should not have been.  I put that to one side, it is a minor aggravation considering the serious issues in relation to this case.

 

23                Crucially, and this is the matter of public interest to which I alluded earlier; within his statement the father confirms that he amended the report using a programme called Adobe Acrobat Pro.  He claims to have procrastinated for two months about what to do about the positive tests, yet he later suggested that he had acted suddenly.  It matters not, because the fact of the matter is that he used this programme and altered the results.

 

 

The Judge found, and the father admitted, that he had committed contempt by falsifying these results. The Judge gave him a twelve month sentence, suspended for 12 months.

Z (A Child : committal proceeding) [2020] EWFC B5 (24 January 2020)    

http://www.bailii.org/ew/cases/EWFC/OJ/2020/B5.html

 

 

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A tale of five silks, five months and a seven day order

Posted on March 5, 2020 by suesspiciousminds

As Bob Dylan sang ‘But they got a lot of forks and knives, and they got to cut something”

 

As far as I know, there has never been a reported case about a Child Assessment Order. In fact, up until this case, there had only been three reported cases that mention one in passing in a case where one was made, and another three that just mention them by way of illustration. In 26 years of practice, I’ve only applied for one ever.  They are so niche, I couldn’t even find how many have been made from the Family Court statistics.  (I was told, anecdotally, that the one I applied for 8 years ago was the 14th ever)

 

They are very rare. I’ve never heard of one being contested. But here we are with not only a contested one, but an appeal about a contested one, with five silks in it to boot.

 

I write this post therefore in the knowledge that it is extraordinarily unlikely that any of the issues in the case will ever emerge again, but hey, if they do, the answers are here.

 

 

Re  I (Children : Child Assessment Order) 2020

http://www.bailii.org/ew/cases/EWCA/Civ/2020/281.html

 

Quick info-dump, a Child Assessment Order is pretty much what the title suggests – it is an order by a Court authorising an assessment to be carried out on a child.  It covers a similar function to section 38(6) where the Court controls what assessments are carried out on children who are within court proceedings, but is a stand-alone application.

You might, for example, use it in a case where you want to do an X-ray of a child whose sibling has a suspicious fracture and you are wanting to check whether the other child has any injuries and the parents say no, but you don’t want at that point to seek an Emergency Protection Order or Interim Care Order.

 

Why was one sought here, why was it controversial, why on earth are five silks involved, in an application generally considered to be niche and fairly trivial ?  Note that the assessment lasts for seven days, the application was made in October 2019, decided in December 2019, and appealed by February 2019, so the court process lasted for five months, or approximately twenty times the duration of the order under dispute.   You’ll see why there are broader issues in a moment, assuming you are still here…

 

Lord Justice Peter Jackson sets it all out very clearly, but the tl;dr is “Suspicions of radicalisation”

Ah, you say, now I get why everyone got silked up.  And why the case has wider-ranging issues that warranted all of this furore.

 

  1. This appeal concerns the court’s power to make a child assessment order under s.43 of the Children Act 1989. It arises in relation to a family with five children. The children, whose ages range between 18 and 9, are making excellent progress and have impressed everyone who has met them. Why then are they the subject of proceedings? The answer lies in their father’s conviction under the Terrorism Act 2000, for which he received a substantial prison sentence. His offences consisted of addressing meetings to encourage support for or further the activities of Islamic State. He had for many years been associated with extremist beliefs and has a previous conviction for violent disorder arising from a sectarian assault, for which he served a term of imprisonment in 2014. In January 2015 he was made the subject of an ASBO arising from earlier violent demonstrations. In December 2015 he was arrested for the terrorist offences.
  3. Following the father’s arrest, there was concern about the impact of his beliefs and activities on the family. It was found that one or more of the children had been taken to meetings at which the father had spoken, and an image of a beheading was found on one of the children’s phones. More recently, evidence emerged showing one or more of the children holding placards at a demonstration in support of the Caliphate. In early 2017 the local authority in whose area the family lives therefore carried out an investigation under s.47. At that stage the mother was assessed as recognising the risks and acting protectively. There was no evidence of her being implicated in the father’s views and activities. The local authority’s plan was for further assessment when the father was due to be released from prison.
  5. The father was released on licence in late 2018, and was placed in a hostel. A further s.47 assessment was undertaken by the local authority. By contrast with the earlier assessment, this raised considerable concerns about the mother’s protectiveness. She said that the father had strong views but that they were not criminal. She referred to the undercover officer whose evidence had led to the father’s conviction as a “snitch”. The assessment, completed on 13 March 2019, concluded that: a Child in Need plan was required (as the father wanted to go home); the Probation risk assessment should be obtained to identify the father’s current view of his offending; the father should be interviewed; an Intervention Provider should be instructed to talk to the children; fuller work should be carried out to provide the children with clear information about their father’s offending; the father’s interaction with the children should be observed.
  7. The mother opposed these interventions, describing them as a collective punishment driven by religion and not genuine concern. The local authority convened a Child Protection Case Conference on 20 May and the children became subject to Child Protection Plans. A referral was made to Prevent so that the case could be discussed within the Channel Panel, a multi-agency panel designed to safeguard individuals at risk. In June, the parents consented to direct work being done with the children but later that month they withdrew that consent. The mother declined to meet a representative from Prevent or engage with a parenting assessment. As a result, the Probation Service advised that the father’s licence conditions had been changed so that the mother was no longer approved to supervise contact. At the Channel Panel meeting on 5 July it was decided that the children should be assessed by an Intervention Provider to establish whether they required mentoring with the aim of increasing theological understanding and challenging extremist ideas that may be used to legitimise terrorism. The parents declined to consent to this assessment.
  9. These events added to the local authority’s concerns. On 22 July, it initiated the process leading to public law proceedings (the PLO process) by sending formal letters to the parents, as a result of which they qualified for legal representation. Then, on 20 August, the father’s licence was revoked due to a breach of his licence conditions. He remains in custody and his release date is not known.
  11. A PLO meeting took place on 5 September. The mother attended on her own. She refused to consent to unannounced visits, a parenting assessment, direct work with the children, or to work being carried out by an Intervention Provider. Further details of the parenting assessment and the direct work proposed were provided to the mother by letter but on 23 September she responded by saying that she did not consent to any work being carried out.
  13. On 7 October, the local authority decided to apply for a child assessment order, with a view to an assessment being carried out by an Intervention Provider. It issued its application on 4 November. Directions were given by Newton J on 13 November and the final hearing took place on 4 December. The application was opposed by both parents and by the four older children, who were separately represented (the eldest has since turned 18 and is no longer the subject of proceedings). It was however supported by the Children’s Guardian. He considered that it is not known whether the children have been exposed to the risk of radicalisation by their father’s actions and beliefs, or whether their mother is fully protective. The family’s unwillingness to work with the local authority has prevented it from assessing either the level of risk or what support can be offered.

 

The Judge at first instance, declined to make the Child Assessment Order  AND ruled that he in fact had no jurisdiction to make one.

 

Here are the statutory provisions  (bits in red are mine for emphasis)

“43 Child assessment orders.

(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

(b) an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and

(c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

(2) In this Act “a child assessment order” means an order under this section.

(3) A court may treat an application under this section as an application for an emergency protection order.

(4) No court shall make a child assessment order if it is satisfied—

(a) that there are grounds for making an emergency protection order with respect to the child; and

(b) that it ought to make such an order rather than a child assessment order.

(5) A child assessment order shall—

(a) specify the date by which the assessment is to begin; and

(b) have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.

(6) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—

(a) to produce him to such person as may be named in the order; and

(b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.

(7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.

(9) The child may only be kept away from home—

(a) in accordance with directions specified in the order;

(b) if it is necessary for the purposes of the assessment; and

(c) for such period or periods as may be specified in the order.

(10) Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.

(11) Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—

(a) the child’s parents;

(b) any person who is not a parent of his but who has parental responsibility for him;

(c) any other person caring for the child;

(d) any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;

(e) any person who is allowed to have contact with the child by virtue of an order under section 34; and

(f) the child,

before the hearing of the application.

 

 

Let’s deal with the jurisdiction point first, which might be classified as a ‘smarty-pants lawyer argument’.  I mean, I wouldn’t categorise it that way myself, but other less kind people might. Naughty other fictitious people.

 

The judge’s conclusion on jurisdiction

  1. The challenge to the court’s powers was pursued by both parents before the judge. However, on the appeal neither the mother (following a change of leading counsel) nor the children sought to uphold the judge’s decision in this respect and it was left to Mr Twomey QC and Mr Barnes to pursue it. The argument runs like this. The effect of ss. (1)(a) and (b) is that the local authority must have reasonable cause to suspect harm or likelihood of harm and the assessment must be required to enable it to determine whether harm or likelihood of harm exists. The local authority must, they say, demonstrate that it has “a suspicion (and no more)”. In this case, the local authority could only have decided to place the children on child protection plans and to activate the PLO process if it had already judged there to be the existence or likelihood of harm: Working Together to Safeguard Children 2018, page 45. Its state of mind was therefore one of belief, not suspicion, and accordingly the test under (a) is not satisfied. Nor, for the same reason, can the local authority meet the test under (b) because the assessment is not required to enable it to determine whether or not the children are suffering or likely to suffer significant harm: it already believes that they are. Even though as a matter of normal statutory interpretation, the greater includes the lesser (so here belief includes suspicion), that approach does not apply as this provision concerns the state of mind of the local authority.
  3. In oral argument, Mr Twomey asserted that as a matter of law the consequence of any one of local authority’s actions in calling the child protection conference, making child protection plans, or initiating the PLO process was to make an order under s.43 unavailable to the local authority and the court. It would not be open to the case conference to decide that an application under s.43 was an appropriate course to safeguard the children. Put another way, if the local authority wanted to seek an order under s.43, it was obliged to go to court before calling a child protection conference. Once it had reached the stage of ‘belief’ the only options open to it were (a) doing nothing, (b) continuing to seek the parents’ consent, or (c) issuing care proceedings. These outcomes are, he said, mandated by the plain words of ss.(1), but he was unable to suggest any good sense to this interpretation, either in terms of child welfare or good social work practice. In particular, he was unable to rebut the local authority’s argument that it would be fundamentally contrary to good social work practice and to statutory guidance for a local authority to apply for a court order before seeking to work with the parents by less interventionist means.
  5. The judge set out these and other arguments at some length, before stating his conclusion in a single paragraph:
    1. “36. Generally, as a matter of construction, the greater includes the lesser. In looking at the Act however, there is a gradual proportionate and cumulative incline in what is required to permit interference in a family’s life by the state. Section 43 is founded on a reasonable cause to suspect. Section 38(2) is founded on reasonable grounds for believing. Section 31(2) is founded on the court being satisfied. Each tier has available to it a raft of supporting powers proportionate to the level of inquiry and a possible conclusion. For that reason, it seems to me that the submissions made in respect of this point (the lesser not being included in the greater) are well founded, since I examining the local authority’s state of mind.”

 

In short – because the LA had held a case conference and registered the children, they had crossed a test of ‘reasonable grounds to believe they were at risk of significant harm’, whereas the test for a Child Assessment Order is ‘suspicion that they are at risk of significant harm’.   You may well be saying, but the test for a Child Assessment Order is LOWER, so if they met the former, the latter must be met too. And you would underestimate the smartness and ability of a silk to make what seems like a bad point into an argument.   The argument here is that in over-shooting the test, it is no longer a ‘suspicion’ but a ‘reasonable belief’ and thus it is not open to the LA to seek a Child Assessment Order because their evidence is TOO GOOD.

You can see that the Court of Appeal were sceptical, because the natural end point of this is that the LA ought to dash into Court to seek an order rather than to seek to work with the parents under a PLO or a Case Conference, which flies in the face of the way things are supposed to work.

Fascinating though the suggestion that an examination of the local authority’s state of mind is needed is, the Court of Appeal were not convinced.

 

  1. With respect to the judge, I consider that he was wrong to reach this conclusion for these reasons:
  3. (1) Section 43 must be read in the context of the legislation as a whole. As Mr Samuels QC and Mr Lefteri submit, the scheme of the Act points to the child assessment order as forming part of the initial stages of investigation and assessment. As Ms Howe QC and Ms Chaudhry say, the purpose of the section is to enable proper assessment to establish whether there is a need and justification for any further action. This is also the effect of the statutory guidance quoted above.

(2) The condition at ss.(1)(a) provides a relatively low threshold of reasonable suspicion. This is a threshold to be crossed, not a target to be hit. The normal rule of statutory construction applies to this provision as to any other. The reason given for departing from it, namely that the court is examining the local authority’s state of mind, has no logical foundation.

(3) The only restriction on the use of s.43 where the threshold is crossed is that provided by ss.(4) which prevents the making of a child assessment order when an emergency protection order should instead be made.

(4) The condition in ss.(1)(b) plainly exists to ensure that an assessment can only be ordered if it is required, i.e. necessary. However, a determination of whether a child is suffering or likely to suffer harm is not confined to a ‘yes’ or ‘no’ answer. The assessment is designed to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. Nothing less will allow the local authority to understand the child’s situation and determine how best to proceed. The narrow interpretation of the provision accepted by the judge overlooks the essential qualitative character of the assessment process. It also fails to connect with his own description of the underlying question as being “under what circumstances might the parents’ religious views and activities result in harm to the children’s physical and emotional health and wellbeing?” That was the question to which the assessment would be directed.

(5) The suggested interpretation does not provide “the sensible approach to child protection” spoken of by Baroness Hale. It conflicts with good social work practice and needlessly limits the flexibility with which the powers under the Act should be exercised. It is clear from the guidance that it is not the intention of the legislation to push the local authority into making an application under Part IV in order to obtain an assessment. That might then lead to substantial litigation and an application for the proceedings to be withdrawn, as happened in the radicalisation cases A Local Authority v A Mother and others [2017] EWHC 3741 (Fam) and In re A and others (Children)(Withdrawal of Care Proceedings: Costs) [2018] EWHC 1841 Fam; [2018] 4 WLR 146. This would fly in the face of the principle of proportionality and if it were correct it would effectively render s.43 redundant.

  1. For these reasons I would unhesitatingly conclude that as a matter of law the court had the power to make a child assessment order in this case.

 

Of course, the parents could make use of the argument in section 43(4) that the Court can’t make a Child Assessment Order if the Court considers that it should make an Emergency Protection Order instead, but you can easily see why that would not be an attractive argument to deploy on behalf of a parent.

 

So, having ruled that the Court COULD make a Child Assessment Order, the Court of Appeal then considered whether in the circumstances of the case, the Judge was wrong to decide not to make one.

 

 

  1. The judge then concluded:
    1. “48. The evidence and legal principle in this, as in other such cases, is complex and has to be considered on a case by case basis. Applying well established principles to the evidence that has been available to the Court, I am satisfied that the authority in this case has not satisfied the provisions of s.43.

49. Once the absent evidence has been obtained, even at this belated stage, further urgent decision making will be required about whether or not it is appropriate that there needs to be intervention and of what sort. The approach of the family will obviously be an important part of that analysis.”

  1. Because the judge did not express himself with reference to the terms of the statute, it is not easy to be precise about his reasons for refusing the local authority’s application, but they would seem to be these:
  3. (1) He had no power (as above).

(2) It is too late. There were probably reasonable grounds for suspicion in 2015, and the local authority should have acted then. After “4 uneventful years” now is not the time to assess the risk.

(3) (Though not said in terms) the local authority does not have reasonable grounds for suspicion. The application needed more than a “historic” foundation. The failure to gather available evidence about the father from the probation and prison service means that there is no current evidence of the children having been affected by their father’s views.

(4) Alternatively, and for the same reasons, the assessment is not required.

(5) In any case, an order would be disproportionate.

(6) It is unlikely that the older children will participate in an assessment. Endeavouring to compel them to be assessed would be heavy-handed, disproportionate and possibly unfair.

(7) Given the children’s stance, an assessment would not be likely to produce better information than is presently available.

(8) The local authority can think again once it has more information.

 

The Court of Appeal set out the arguments of the LA and Guardian urging a Child Assessment Order and the parents urging that the initial decision should stand.

Their conclusions

 

  1. This aspect of the appeal is from an evaluative decision of a trial judge and it can only succeed if the decision is one that the judge could not reasonably have reached on the evidence before him. That is a high hurdle, but I conclude that it has been cleared in this case for these reasons:
  3. (1) The judge’s approach to the two questions that faced him was inherently inconsistent. Having decided the question of law on the supposition that the local authority was overprovided with information, he based his evaluative decision on the conclusion that it had insufficient evidence for its concerns.

(2) The circumstances of this case present a clear basis for serious concern about the welfare of these children, which their good progress alone could not dispel. Risk of this kind can never be regarded as “historic” until it has been positively shown not to exist, but the judge gave little or no weight to the obvious risks inherent in the father’s long-held views, which were only magnified by the family’s more recent withdrawal of cooperation. The alignment of position between the parents was a further troubling development.

(3) In contrast the judge gave disproportionate weight to his view of the local authority’s approach. In effect he substituted for the requirement for reasonable suspicion a test of whether the local authority had acted reasonably. And even if it was appropriate to criticise the decision to await the father’s release before refreshing its assessment (and for my part I can see no reason to regard that approach as unreasonable) the court was obliged to deal with the case on the facts as they were, not as they might have been.

(4) The judge was plainly unimpressed by the inter-agency working in this case. He considered that information about the father’s current mindset was necessary and should have been obtained before assessing the children. But even if dependable information about that could be obtained from other agencies, it would only fill in part of the picture and an assessment of the children was likely to be necessary in any event. The argument that an assessment should not be ordered because there are gaps in the evidence is circular.

(5) In any event, the judge appears to have accepted that all the information was needed (see paragraph 49 of his judgment). If he considered more information about the father was a precondition to an assessment of the children, he could have given directions for that information to be obtained. The absence of evidence from the parents is also something that should have been noted. Having taken the position that the judge did, the appropriate response was not to dismiss the application but to adjourn it.

(6) The level of past cooperation by the mother or children could not be of much significance if they have withdrawn cooperation before the local authority has the information that it needs to plan its child protection strategy.

(7) The proportionality exercise in this case went awry. The description of the assessment proposal as heavy-handed, disproportionate and overbearing cannot be sustained. High-performing, law-abiding children are not immune from the insidious lure of extremism. The proposed assessment was by no stretch of the imagination disproportionate to the risk in this case. The submission that the children would be left in a vulnerable position without legal representation or that they might be placed in a situation that was unfair is a misreading of the nature of the child protection and litigation processes. Social workers and intervention providers are not threats from whom the children must be protected, but public servants who are seeking to protect these children by means of the least intrusive intervention. The children’s committed lawyers (both those they instruct directly and those representing the Children’s Guardian) will surely not become unavailable to them at the moment the order is made, in the face of an imminent brief assessment.

(8) Even if the reasons for refusing an order in the case of the older children could be sustained on the basis of their views, that would not warrant a refusal to make an order with respect to the youngest child.

  1. A yet further argument was presented by Mr Twomey. He suggests that s.43 does not permit an assessment of the children’s religious faith as that is not a facet of their health, development or treatment by their parents. That argument is self-evidently unsound. What is being assessed is not the children’s religious faith but their vulnerability and resilience in the face of extremist propaganda masquerading as religious faith.
  3. I would however hold that the judge was right to find that the opposition of the older children was not an obstacle to the making of an order. In this respect, his approach is to be preferred to the dicta in Re Q (see paragraph 30 above). As can be seen from the statutory guidance, it is not strictly correct to characterise a child assessment order as an emergency intervention. Nor as a matter of principle is it unlikely that a child assessment order will be made with respect to a competent child who may refuse to submit to assessment: it will depend on the circumstances.

 

[Whilst the statute says that a competent child who says no, is not compelled to participate in the assessment, that does not stop the Court making an order, it just means that at the point of arranging the assessment itself, the objection of a competent child will stop the assessment of that child and override the order, pace section 43 (8)

  2. Drawing matters together, a child assessment order allows for a brief, focussed assessment of the state of a child’s health or development, or the way in which he or she has been treated, where that is required to enable the local authority to determine whether or not the child is suffering, or is likely to suffer, significant harm and to establish whether there is a need and justification for any further action. The purpose of the assessment is to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. It is part of the process of gathering information so that any child protection measures can be appropriately calibrated. It is the least interventionist of the court’s child protection powers and is designed to enable information that cannot be obtained by other means to be gathered without the need to remove the child from home. It is not an emergency power and it may be particularly apt where the suspected harm to the child may be longer-term and cumulative rather than sudden and severe. The order is compulsory in relation to parents but not for a competent child who refuses to participate. The views of an older child are an important consideration when a decision is taken about making an order, but it cannot be said that opposition makes an order unlikely: it depends on the facts of the case and the nature of the risk and the assessment.
  4. Seen in this light, the circumstances of this case might be seen as a paradigm example of a case for which s.43 was intended. More than that, I would conclude that the evidence so clearly pointed to the making of a child assessment order that the judge’s contrary conclusion cannot stand. The outcome, by which the local authority was told to go away and think again after a process that had already hung over the family for a full year since the father’s release, fails to address obvious risks that now require careful assessment. The only remaining way in which the assessment can be made without the issuing of care proceedings is by means of a child assessment order. There is no purpose in remitting the decision, and I would therefore allow the appeal and make the child assessment order in the terms now helpfully drawn up by the parties.
  6. Finally, we would like to address the young people at centre of this case. We know that you will give the same serious attention to this order and the reasons for it that you showed when three of you, one now being an adult, attended the appeal hearing. Our order has only one purpose: to help to keep you safe. We know that the order is not what you wanted, but we believe that it is the very best way of resolving the present situation and of allowing you to get back to the things that you have been doing so well. Three of you have the right to say no, but we hope that you will allow the assessment to take place, as it will do for the youngest one of you, and that you will all do your best.

 

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Interim care order – revision to the separation test

Posted on March 4, 2020 by suesspiciousminds

The Court of Appeal have decided a case called Re C (A Child: Interim Separation) 2020 and this adds an additional component to the test for separation, so all child protection lawyers, social workers and Guardians need to be aware of it.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/257.html

 

It builds upon another Court of Appeal case called Re C 2019 (I have not written about that one, because it was very difficult to ascertain whether it was intending to introduce new principles or was fact specific, this one is much clearer)

 

The test for interim separation (or continued separation) is now

“(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.

(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”

For the purposes of his decision in this case, the judge summarised it this way:

“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”

 

The 5th point is the new addition – that the LA must be able to set out to the Court what available resources could be put in place which might remove the need for separation.

 

It doesn’t need to be in a full-blown alternative care plan like full Care Orders and Neath Port Talbot, but I have found a useful approach to be

 

Imagine that the Court don’t grant removal and the child stays with the parent – what would that look like?  (TM my friend Becca Carr-Hopkins).  What would be your ingredients of the protection plan or written agreement or contract of expectations.  Then, in relation to those, what resources could the LA reasonably put in place to assist with each of these?  Having done that, the social worker, the lawyers, and the Judge can consider – would those manage the risks that are present, in full or in part? Would the parents realistically be able to comply with those requirements?

 

So it becomes not only a useful piece of information for the Court, but an actively useful analytical and decision-making tool for the Local Authority.  It helps hone down on ‘do we really need separation, or could we manage this risk another way?’

 

 

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Turns to dust – vaccinations and confusion

Posted on February 10, 2020 by suesspiciousminds

This is YET another judgment in the Cestui Cue Vie litigation, this time about vaccinations.  And it has made my head hurt.

http://www.bailii.org/ew/cases/EWHC/Fam/2020/220.html

 

T (A child), Re [2020] EWHC 220 (Fam) (07 February 2020)    

 

The previous law on vaccinations of children who are in care, where parents object, is  “Don’t do it under section 33 of the Children Act 1989, make an application and let the Court decide”

 

[Section 33 basically allows a Local Authority who hold an Interim Care Order or Care Order, to take actions that they think are necessary to safeguard or promote the welfare of the child. In effect a veto/overule to parental objection]

MacDonald J in Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam):

 

 

“33. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order

 

 

Vaccination is a hot-button topic, though not QUITE as much as it is in America, but still something that some people hold very strong views on, particularly the MMR vaccine and the theory (well and truly debunked) that it causes autism or can cause autism.  Still, it is something that parents often feel very strongly about.

 

In this case, the LA made such an application

Hayden J says

 

I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3) CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination

and

I consider that this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s.33(3) CA.

 

He considers the application anyway, because he identifies that if the LA had proposed to authorise vaccinations under s33, the parents would have made an application to block it under the inherent jurisdiction.

 

Why has this made my head hurt? Well, because we now have two High Court Judges, one who says ‘Oh, you HAVE to apply to Court, you can’t do it under s33’ and the second who says ‘you shouldn’t be bothering the Court with this, do it under s33’

 

So, if a parent in a case says  “I don’t want my child to have the MMR” and the child is subject to an ICO or a Care Order, what do you do?

 

I’m very grateful to Chris Barnes and David Burrows for helping me get this straight.  As best as I can tell, Hayden J’s decision that you should do it under s33 and NOT make an application binds Justices, District Judges, Circuit Judges. Court of Appeal or Supreme Court could overturn it.   And a High Court Judge should stick with Hayden J’s decision unless persuaded that a key binding or persuasive authority that should have been shown to Hayden J wasn’t.

If I had to guess at what would happen if the issue comes up before MacDonald J again, I imagine that he would agree that he is bound by Hayden J but without a deal of enthusiasm. I’d try to avoid it if possible.

(It is a bit like Referees and the FA Disciplinary Panel – if the Referee sees the scything tackle and gives a yellow card, the video panel can’t give a ban, but if the ref says he didn’t see it then the video panel can ban the naughty player.  Here, because Hayden J was taken to all of the relevant authorities, everyone else OUGHT to follow his decision. This arises from Colchester Estates v Carlton Industries 1984)

 

Where a decision at first instance has itself been considered by a second judge at first instance, I do not regard myself as free to depart from the second decision (unless persuaded that some binding or persuasive authority has been overlooked): Colchester Estates v Carlton Industries [1984] 2 All ER 601. 

 

From Futter v Futter and Others 2010   paragraph 3 https://www.bailii.org/ew/cases/EWHC/Ch/2010/449.html

 

So, the state of play is, vaccines are now authorised under s33, and the Court will only get involved if the parent makes an application under the inherent jurisdiction to prevent it.

 

Moving away from the big picture, I always find that a Hayden J judgment contains at least one masterful piece of prose, and this doesn’t disappoint.  Poor counsel for mum is faced with making an anti-vaxx argument based on research that has clearly not quite stood up to rigorous scrutiny.

  1. In his position statement, Mr Bailey, on behalf of M, particularises her views, in relation to her other children, in order to establish what he terms to be “the potential impact on T“:
      1. “(i) X (22) was in pain for many years after receiving the Gardasil vaccination (HPV), and also led to her being hospitalised for a week. No diagnosis was ever made and still suffers pain today. She was also given 5 doses due to a nurse telling us it was perfectly fine to have extra doses. The recommended dose is 3.

(ii) After receiving vaccinations Y’s (11) development was delayed which has led to him having to receive growth hormone replacement. It was ruled out that his condition was genetic and to this day it remains a mystery as to why this has happened.

(iii) U (18), F’s son, was in good health growing up but now has a condition called Russell-Silver syndrome (SRS-a congenital condition). This was diagnosed when he was 8 years old;

(iv) V (16), F’s son, began fitting a week after having the first set of MMR vaccinations. He was subsequently diagnosed with West syndrome (severe epilepsy). V’s IRO has informed the parents that V no longer has this condition and no other diagnoses have been made. Currently, V is in a wheelchair, cannot walk, talk, or do anything for himself. He wears nappies 24/7 and self-harms by punching and biting himself. He is said to have a developmental age of a 6 month-old baby.

(v) Research (undisclosed for the purposes of this Position Statement) indicates that a. some vaccinations contain aborted human foetus matter and b. some vaccines contain other ingredients that the mother objects to.

(vi) If T is to have vaccinations then the mother would want these to be given separately as research (undisclosed for the purpose of this Position Statement) shows that multiple vaccines at the same time shock the system and some children go on to develop autism and other conditions. The mother believes that it is safer for T to be given vaccinations separately.

(vii) T is now 10 months old and is in very good health. Apart from a few colds (in foster care) he has not had any childhood illnesses in spite of not being vaccinated and has a strong immune system. Research (undisclosed for the purposes of this Position Statement) shows that babies and children who have a good healthy balanced diet with the correct nutrition build a healthy immune system and do not need to be injected with viruses and heavy metals.

(viii) The Local Authority once informed M than T had contracted measles, but to date this has never been confirmed. If this was in fact the case then M will say that this shows that T’s immune system naturally fought of the virus and his immune system is strong.”

  1. Very properly, Mr Bailey highlights, at (v) and (vi) above, that the research said to support these submissions is “undisclosed for the purposes of this position statement.” By this, Mr Bailey was signalling, I think, that he had not seen any such research. In any event, he did not produce any during the course of his oral submissions. Though attractively presented, the submissions are both tenuous and tendentious. They were supported by F, who read from a document which purported to say that some of the vaccinations contained “MRC-5, the genetic code of a human male.” I pressed F on this, as to what it actually meant, and, in particular, I asked him whether this was the point raised on behalf of M to the effect that some vaccinations contained “aborted human foetus.” He agreed that it was.

 

 

The representations continued, with mother’s counsel arguing that the LA had just taken a pro-vaccination stance generally, and had not applied thought to whether it was necessary in the case of this individual child

 

  1. Mr Bailey argued that the Local Authority had advanced its application by supporting the principle of immunisation generally. That approach would be misconceived. It was deprecated in Re SL (supra); in Re C and F (supra); and in LCC v A and Ors (Minors By Their Children’s Guardian) [2011] EWHC 4033 (Fam). Mr Bailey queried whether Dr Douglas had seen T’s medical records. Whilst the inference of his report was that he had seen the records, it was certainly not explicit. This led Mr Bailey to submit that Dr Douglas and, by implication, the Local Authority itself had not approached the issue with the necessary “individuation.” By this he meant that the merits and demerits of vaccination had been considered theoretically rather than with specific focus on this child.
  3. With respect to Mr Bailey, this point turns to dust in the face of the adoption medical report, which reveals Dr Douglas, in my judgement, to have a detailed and empathetic understanding of his patient. The report highlights:
      1. “2. Growth and development. T was born with moderately low birth weight (between 2 and 2.5kg) which is probably due to maternal smoking in early pregnancy. Low birth weight can be associated with poor growth and delayed development although he has shown good catch-up growth since birth and his development is within normal limits at present. However, his growth and development need ongoing monitoring and recognition of any problems such as decreased growth velocity, motor delay or speech and language delay should prompt early referral for assessment

 

 

I’m sure that there have been many occasions when I have been striving to make what I hoped was a good point, or at least a point, and the Judge could have retorted that my point has turned to dust.  (I can think of a hearing I did last year where Mr Braithwaite of counsel helpfully pointed out that I’d got something wrapped entirely round my neck, but in his usual charming way).  I hope that I never have to hear that being said in a judgment.

 

Is this the end of the Cestui Cue Vie case? Surely not.

 

 

 

 

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I must confess I still believe

Posted on February 5, 2020 by suesspiciousminds

 

It is such a quintessential movie moment, the killer slinks into the confession box and breathlessly tells all to the priest on the other side who fumbles nervously at his rosary – he knows the truth, but can never tell…

This doesn’t come up very often in family law – insert your own withering remark about Catholic priests here if you wish. This, however, is a case that not only relates to it, but helpfully gives us a Victorian era criminal law authority for the legal sanctity of the confession box.

(It is also timely because I had to break off from House of Games last night for a short debate as to whether or not Reverends who appear on television HAVE to wear the dog collar even when they are on a game-show, so ecumenical matters are at the forefront of my mind this week)

 

Lancashire County Council v E & F [2020] EWHC 182 (Fam) (04 February 2020)
http://www.bailii.org/ew/cases/EWHC/Fam/2020/182.html

 

This arose from a case in which the mother spoke to the members of her Jehovah’s Witnesses Church about allegations that the father had sexually abused the children.  The Jehovah’s Witnesses Community also spoke with the father about these matters and it seems carried out their own investigation.

Within care proceedings, the Local Authority wished to see those notes.  The Jehovah’s Witnesses Community opposed that, and when a witness summons was issued sought to set it aside.  They were willing to provide the records relating to the conversations that they had had with the mother (who was consenting to the production) but not those with the father.

  1. Mr Achonu argues there is a duty of confidentiality by elders or Ministers of religion and they are unable to disclose information which has been communicated to them in the course of confidential “spiritual counselling” without the express consent of the individuals concerned. He says that that duty of confidentiality is protected by article 9 of the European Convention on Human Rights (ECHR). In the light of this argument he says that A and B are prepared to disclose information given to them by the Mother, because she has provided her consent, but not by the Father because he has not given consent. It is not at all clear how in practice this would work, given that much of the information sought relates to both of them. However, this issue is somewhat academic given the conclusions I have reached in this judgment.
  3. Mr Achonu argues that A and B are under a spiritual duty not to disclose confidential religious communications and that if such confidence is breached then individuals might no longer confide in their ministers.
  5. He relies by analogy on the approach in the Police and Criminal Evidence Act 1984 (PACE) Schedule 1, and the provisions therein, which protect confidential information, including that relating to spiritual counselling in s.12 (b), and a balancing exercise has to be undertaken under Schedule 1 of PACE when disclosure of such records is sought. He argues there is an analogy with the position in R v H 2019 1 WLR 3744 where the Court of Appeal refused to order the disclosure of discussions between an offender manager and an offender. The Court said that it would only order such confidential discussions to be disclosed if there was a very good reason, because it would be contrary to public policy to do so. I note that at [39] the boundaries of the confidentiality being asserted are expressly said to be “apart from child protection issues….“. Therefore this case is of no assistance to Mr Achonu on the facts of the present case.

 

Ouch.

  1. R v H at [53 states];
      1. Firstly, it would in our view be contrary to public policy to breach the confidentiality of discussions of the kind save for very good reason. Such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be; and the internal rules of Camden social services (or of any other local authority’s officers) are not binding in the courts; but we regard them as well drafted, sensible and worthy of respect. There is a distinction between disclosure necessary to avoid imminent future criminality (in particular a threat to someone’s life or safety) and the obtaining of admissions to past offences. It would be extremely unfortunate if convicted defendants (whether young or adult) were deterred from speaking to those charged with their supervision or rehabilitation until any appeal against conviction had been dealt with.
  3. Mr Achonu argues that the communications with A and B, and the documents sought under the witness summons, should be treated in the same way as a religious confession. He relies on R v Hay (1896) 2 F&F4, which is cited in Archbold at 12-21, as support for the proposition that; “the position of priest and penitent has not been authoritatively decided, but the tendency of judicial dicta is that, while in strict law the privilege does not exist, a minister of religion should not be required to give evidence as to a confession made to him.”

 

Well, if you don’t think we’re about to look at R v Hay and find out what it is all about, then you don’t know me very well.

 

In R v Hay, a priest was found to have a stolen watch, and had thus (unwittingly received stolen goods). The police wanted to know who had sold him the watch and the priest refused.  At a trial, the priest had to give evidence. He refused to answer questions as to who had sold him the watch.

The Judge said :-

I have already told you plainly I cannot enter into this question. All I can say is you are bound to answer. From whom did you receive that watch. On the ground I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose; but you are asked to disclose from whom you received stolen property on the 25th of December last. Do you answer it or do you not?

When the priest continued to refuse to answer the Judge sent him to prison for contempt.

 

The decision of the Court was that whilst the priest could legitimately refuse to answer any question about what had or had not been said to him in the confessional, he could not extend that beyond it even if it were about a parishioner who came to confession. The watch had not been sold to him in the confession box, so the protection did not apply.

I’m afraid I can’t find a link to the judgment, but the Wikipedia page gives more detail for those who are interested.

https://en.wikipedia.org/wiki/R_v_Hay

 

It immediately seems to me that the church was on a sticky wicket trying to rely on R v Hay as authority for not disclosing the evidence, because the case is very specific that it applies only to evidence obtained in the confessional.

Mr Achonu argues that the duty of confidentiality is not limited to the confessional but can have a wider remit. He says that any information revealed during spiritual counselling is subject to the duty of confidentiality. It is not entirely clear to me what would be covered by spiritual counselling, but given that A and B are refusing to produce any information about what they knew or what investigations were made unless consent is given, it would appear to be being argued that all information relating to the alleged sexual abuse was related to spiritual counselling and thus confidential.

 

Hard to be sure when you can’t see the documents to see what was and wasn’t spiritual counselling, but it seems a thin argument. The thinness of the argument is emphasised when Canadian authorities are produced in aid. Unless Lancashire is suddenly transplanted to Quebec, it is going to be of limited value.

  1. Mr Achonu relies on a Canadian Supreme Court case R v Gruenke [1991] 3 RCS 263. The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights. The approach of the Court was not to apply a strict approach to what was a confession, see [291], but to look at all the relevant circumstances and apply what is known in Canada as the Wigmore criteria. These are set out at p.284 as follows;
      1. 1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

  1. These criteria are very similar to the approach taken in article 9(1) and (2). The communications must fall within the said religious duty of confidentiality and if they do so any order to disclose must meet a proportionality test.

 

Given that the purpose of disclosure is to assist the Court in deciding what harm, if any, the children suffered and thereafter to make decisions about their welfare, it is hard to see proportionality coming to the aid of the Church here.

 

 

Conclusions

  1. There are a whole series of reasons, some overlapping, as to why the witness summons should be upheld and disclosure ordered and why I reject Mr Achonu’s submissions.
  3. Firstly, there is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. It appears that the allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion. It is possible that at some point the Father “confessed”, but I have no evidence this was the case. In any event, the investigation cannot itself amount to a confession. Therefore, to the degree that there is a duty of confidentiality in relation to a confession, which I am prepared to assume on the basis of R v Hay, but not decide, it would not arise here.
  5. Secondly, the material that the Council seeks also does not, on the evidence, amount to “spiritual counselling”. There was an investigation into E’s allegations. The whole focus of Mr Achonu’s submissions on this point appears to me to be misconceived. To describe the material sought as being the product of spiritual counselling is to focus on the Father and concerns about his religious confidentiality, rather than on the child. The elders appear to have been neither carrying out an investigation into the child’s allegations and how she could be protected, nor providing spiritual counselling to the Father. Mr Achonu’s submission in my view provides a plain example of his clients, with or without the agreement of the Congregation more widely, putting the Father’s interests above those of the child.
  7. Thirdly, and in any event, the Congregation’s own policy, certainly that of 2013 and probably the 2018 version, indicate that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, then it “will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children.” In the 2018 policy at para 5, it says that the elders will be told to report the matter if the child is still at risk of abuse. It seems highly likely that E was still at risk of abuse up to July 2019, yet the elders did not report the allegations.
  9. The stance that Mr Achonu has taken in this case, namely that the material will only be disclosed when the individual consents, is not reflected in either of the policy documents and he could give me no support for that approach.
  11. There does appear to be a strong suspicion that the Congregation’s own published guidance, both 2013 and 2018 was not followed, not just by A and B, but also by more senior figures in the Congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.
  13. To the degree it is argued that although there might have been a requirement under the policy to report the allegations earlier, that does not mean that the information should now be disclosed, I reject that suggestion. The information held by the Congregation has the potential to be highly relevant both for the future protection and wellbeing of E and F, but also of other children. The information is likely relevant to three key questions for the Court – whether the threshold findings of fact in respect of the Father are made out; whether the Mother failed to protect E; and what future risk the Father poses to E if she lives with her Mother. It is also potentially highly relevant to whether the Father poses a risk to other children. This is a situation which is concerned with future child protection, and not simply past criminality, it therefore falls on the other side of the line applying the approach in R v H at [53].
  15. Fourthly, Mr Achonu accepted that whether the duty of religious confidentiality is examined through the common law or article 9 it is not an absolute duty. This is clear from the caselaw, R v H, R v Hay and the words of article 9(2). Respect for A and B’s religious beliefs is given by article 9(1), but that is qualified by article 9(2) including in the interests of public safety, the protection of health and morals, and the protection of the rights and freedom of others. It could not be more obvious that a freedom to manifest ones religious beliefs must give way to the need to protect a child from sexual abuse. That balance is to some degree reflected in the two policy documents, but has not been reflected in A and B’s approach to this case. The evidence points inexorably to A and B having protected their and the Father’s religious beliefs at the expense of the protection of the child.
  17. Fifthly, it therefore follows that the witness summons and the requirement for full statements from A and B, together with the documents sought are a proportionate interference in A and B’s right to manifest their religion. The interference in their religious rights is in my view relatively slight, given the terms of the two policy documents and the fact that the information does not appear to have been given in a confession or in any real sense as spiritual counselling. The other side of the proportionality balance is that the need for the protection of E and F, as well as other children is a highly weighty if not overriding factor. 

 

 

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Notification of fathers or family in voluntary adoption cases

Posted on February 4, 2020 by suesspiciousminds

 

 

 

The Court of Appeal have given a judgment in three linked cases where a mother wished to arranged for her child to be adopted and the Court had to decide whether or not to inform the father/relatives

The facts and details about the 3 cases are at paragraph 90 onwards of the judgment. In the first, the Judge had decided not to tell the father and the Court of Appeal overturned that, in the second the Court decided in care proceedings not to tell the grandparents of the child’s existence and the Court of Appeal upheld that, and in the third the Judge decided that the father should be told and the Court of Appeal upheld that. Three very different sets of facts and three different outcomes, but helpfully the Court of Appeal analyse all of the relevant law and distil from it the principles and good practice to be applied in such cases.

 

A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/41.html

 

The new bit of law in this case is the Court of Appeal decision that when DECIDING whether or not a father or relative should be notified, the child’s welfare IS NOT the Court’s paramount consideration (or the Local Authority’s when they are making the decision). The Court is not deciding whether the child should be adopted (when welfare IS paramount) but who should or should not be told.

 

 

 

82.As noted above, there is uncertainty about whether what I have described as the core principles (welfare paramountcy, the prejudicial effect of delay and the welfare checklists) apply directly to a decision about notifying a father or relatives about the existence of a child or of proceedings. In a sense, not much turns on this: child welfare, prompt decision-making and a comprehensive review of all relevant factors are central to the notification decision, regardless of whether they are directly mandated by statute. Nevertheless, decision-makers are entitled to know whether their decision should place child welfare above everything else or not, and a correct formulation of the principles reduces the risk of error in decisions at the margins.

 

 

83.In the light of the observations in Re C v XYZ County Council, it is not surprising that a number of the later first instance decisions recite that the core provisions are engaged, or that a number of the parties before us so submitted. However, after closer examination, I am satisfied that the decision about notification does not directly engage these provisions. My reasons are these:

 

 

 

  1. So far as the CA 1989 is concerned, the decision is not one “relating to the upbringing of a child”. It is a decision about who should be consulted about such a decision.

 

  1. The same applies to the ACA 2002. The decision for the local authority and the court is not one “relating to the adoption of a child”, but a decision about who should be consulted about such a decision.

 

  1. The terms of s.1(7) ACA 2002, which apply only to decisions by the court, do not lead to a different conclusion. The subsection is not without difficulty – see Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616; [2007] 2 FLR 1069 at [19-24] – and I cite it again for convenience:

 

 

“In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

 

 

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

 

 

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

 

 

but does not include coming to a decision about granting leave in any other circumstances.”

 

 

Although widely drafted, sub. (a) does not cover the paradigm situation where a Part 19 application has been made, nor is that an application for any form of leave as mentioned in sub. (b). And even if there are proceedings of the kind mentioned in sub. (a), it cannot properly be said that every case-management decision within those proceedings is one to which welfare paramountcy applies. Such decisions are more apt for the application of the over-riding objective in Part 1 of the FPR 2010, which requires the court to deal with cases justly, having regard to any welfare issues involved. In my view the correct interpretation of the expression “coming to a decision” in s.1(7) ACA 2002 means coming to a decision about the substance of the application, whether it be an adoption order, a placement order, or a contact order. It does not include coming to a decision about who should and should not be informed of the existence of the child or of the proceedings themselves.

 

  1. This conclusion is consistent with the established distinction between decisions that are welfare-paramount and those that are not. This is made explicit in the cases reviewed at paras. 48-50 above and the corresponding silence in the entire line of authority preceding Re C v XYZ County Council is equally significant. To take one example, the decision of the House of Lords in Re D [1996] about withholding material in confidential reports did not refer at all to the equivalent provision to s.1 ACA 2002 in the Adoption Act 1976 (which by s.6 placed a duty on the court and the local authority to give first consideration to the need to safeguard and promote the welfare of the child). Likewise, in Re X [2002] this court determined the issue of whether the parents should be told that the foster parents were adopting the children by striking a balance between the competing interests, not by prioritising child welfare. This approach continued after the enactment of the ACA 2002, as can be seen in the comprehensive survey of the law conducted by Munby J in Re L [2007], which makes no reference to s.1 of the Act, to welfare-paramountcy or to the welfare checklist.

 

  1. Re C v XYZ County Council, while plainly correctly decided, is not binding authority on this issue, for the reasons I have given above.

 

  1. The later decision of this court in Re A [2011] does not support a welfare-paramountcy test.

 

  1. Lastly, there is no reported decision of which I am aware in which the outcome has been dictated by the court finding that the welfare of the child trumps all other considerations; instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.

84.For these reasons I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.

 

The Court of Appeal quote with approval the joint ACDS /CAFCASS procedure in relation to relinquished children. You can find that in a drop down menu here, https://www.cafcass.gov.uk/about-cafcass/policies/ but thankfully the Court of Appeal set out the key aspects

 

Urgency and thoroughness of procedure

86.A local authority, faced with a baby that may require adoption, either because a mother wishes to relinquish the baby for adoption or because there are proceedings with a plan for adoption, will be acutely aware of the need for a speedy decision. Where the mother requests confidentiality, it will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother’s consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.

 

 

87.I have referred already to the Cafcass/ADCS protocol, which has been taken up by a number of local authorities. In the proceedings before us, which involved three local authorities, the parties collectively filed an agreed statement of the steps that will need to be taken by the local authority in cases such as these. It is not for this court to determine local authority procedures but I record the parties’ agreement for the help that it may give to those facing these situations.

“1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child’s father or extended family:

 

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

◦The decision to place the child for adoption.

◦The reasons for not notifying the child’s father, or extended family, where possible gathering details about the father’s background and that of the family.

◦The mother’s background and information about her family.

◦Any cultural issues and how they have affected the decision made by the mother, or mother and father.

◦The implications of adoption for the child

◦The legal process required to achieve adoption

◦Other possible options for the care of the child

◦The adoption counselling service and how to access it

◦Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

 

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

 

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

 

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with ‘foster for adoption’ / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

 

 

 

  1. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.

 

 

 

  1. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother’s claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father’s family.

 

  1. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.

 

 

 

  1. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.

 

 

 

  1. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.

 

 

 

  1. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority’s position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members.”

88.In cases where an application to the court is issued, the court should be equally alert to the need for urgency, bearing in mind that time has already passed in preparation for the application and the hearing. The following matters will require attention:

 

 

 

  1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

 

  1. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children’s Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

 

  1. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian’s analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

 

  1. Receiving the mother’s account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

 

  1. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

 

 

The Court of Appeal then helpfully summarised the law as derived from their very careful analysis of the relevant authorities

 

89.The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.

 

 

 

  1. The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

 

  1. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

 

  1. The decision should be prioritised and the process characterised by urgency and thoroughness.

 

  1. The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

 

  1. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

 

  1. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

 

 

(1) Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

 

 

(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

 

 

(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

 

 

(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

 

 

(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother’s wish would always prevail at the expense of other interests.

 

 

(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

 

 

(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child’s existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

 

 

(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child’s permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child’s established carers or to the loss of an especially suitable adoptive placement.

 

 

(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.

 

  1. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.

 

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Adoption as orthodoxy

Posted on January 29, 2020 by suesspiciousminds

 

 

 

I note that adoption is once again becoming a political football, with Government spokespersons holding it up to be the gold standard for children. We have been here before, and no doubt we will be here again.

This judgment from a Circuit Judge is therefore both timely and sadly timeless. None of what is said within it is newly binding (save that the Judge carefully and accurately records the statutory and regulatory sources, and the caselaw from which her analysis derives, and that some of the matters within it are long-standing regulations which have not been forensically inspected by a Court before) but I think all of what it contains is powerful and an important reminder of the stakes in which we are dealing when the Court is asked to make decisions about children’s futures.

It is also a case involving a decision about wasted costs in a highly flawed Placement Order application, and in which counsel who tried to be clever about the word ‘reprehensible’ received something of a lesson.

The case was heard by Her Honour Judge Lazarus (and my fingers in typing almost wrote ‘as she then was’ as though I had slipped forward in time a few years)

A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020)

https://www.bailii.org/ew/cases/EWFC/OJ/2020/B2.html

 

The case involved a a girl of 4, whose parents had accepted that the threshold criteria were crossed and that they could not care for her. The only realistic options before the Court were a plan of adoption or a plan of long term fostering. The Local Authority sought a Placement Order and thus a plan of adoption.

 

An important issue in this case was how large an immediate and extended family this child had, and the careful need to consider the impact on the child of maintaining or severing relationships with that family.

 

  1. Another key element of that background, as already mentioned, is the very large family-centred tight-knit active family group that she belongs to. This already holds out the prospect of meaningful relationships with at least 29 individuals in this country in her immediate family (parents, siblings, grandparents, nephews and nieces) let alone the further dozens in the next ranks of her extended family (aunts, uncles, cousins), many of whom are close in age to A. Drifting too far from being able to create and maintain those relationships, and from some familiarity with their traditions, would be highly detrimental to A and the prospects of a future richly populated with loving relatives and their shared heritage. Supporting these aspects, and acknowledging the challenges given her characteristics, is very important to A’s long-term welfare.

 

 

The Judge made it clear that she was not critical of the Local Authority for considering an option of adoption

 

  1. To be clear, there is no criticism of the making of an application for a placement order itself. There would have been scope for this complex and finely balanced argument to be made properly to the court, and for the court to consider all the aspects of the issues applicable to such a serious step in order to determine the appropriate outcome

 

However, despite it being identified once the LA final evidence was filed that it was lacking in the necessary carefully balanced analysis and argument, and the Local Authority being given further opportunities to remedy that by addressing clearly identified missing issues in addendum evidence, the requisite quality of evidence never emerged. The LA had three such opportunities, including on the first day of the hearing, and matters ended up unravelling completely during the social work evidence.

 

  1. However, what analysis there was emerged as incomplete, partial, unsupported by sufficient evidence or reasoning. ‘Permanence’ was lauded above all else, with little rationale or substantiation or research to underpin that claim and the assumptions and assertions made.

 

 

  1. What analyses there were hardly touched upon the disadvantages to A of adoption and effective severance from her birth family, or the problems posed by her diagnoses in terms of any attempts to mitigate those losses.

 

 

  1. Negative observations in relation to the family were over-emphasised based on the slightest of evidence, and positive issues for which there was ample and good evidence were hardly mentioned if at all. Whole factors that would not sit easily with the plan for adoption were almost completely ignored. It was a skewed and highly partial approach.

 

 

  1. Ultimately, such an approach not only undermines the local authority’s own case for adoption because the good and substantial evidence and analysis required by the case law is simply absent, but it does not serve the child well nor assist the court.

 

 

  1. I entirely accept that there are, sadly, many cases where the drastic and life-changing severance of legal and other forms of relationship with birth families are justified. Often it is where the incapability of family members to meet a child’s needs or the risks of significant harm are very great, and where the benefits to the child of ongoing relationships with birth family members are scanty, being of poor quality, negative impact or largely non-existent in terms of any obvious positives or likely continuation.

 

 

  1. Here, the contrast with such situations was very great, with a very large loving connected family group holding positive respectful family values, celebrating a distinct culture and heritage, highly co-operative, admitting their area of parenting failure but otherwise forming a wide group of highly functional happy secure close adult and child family members, and offering consistent positive committed loving relationships to A, and in particular with siblings, nephews, nieces and cousins who are close to A’s age.

 

 

  1. 63.   This required careful, nuanced, thoughtful and balanced analysis. Instead, listening to the social worker’s oral evidence was a painful experience. Almost none of those benefits and contrasts were touched on at all. No research was referred to in her documents or oral evidence. It was difficult to get her to focus on A’s needs and characteristics, as opposed to reciting generalised assertions about adoption. It was clear that she initially thought she had fully reviewed A’s welfare interests, even though her document was largely a cut-and-paste copy of the initial CPR with a few further paragraphs added and a slightly expanded tabular discussion of various pros and cons.

 

 

  1. The process of cross-examination increasingly revealed glaring gaps and distorted arguments. It was telling that, despite the local authority claiming that it grasped that this was a complex and unusual case and that all the relevant issues had been considered, in fact very few of the relevant complexities were set out or analysed in any document and not even in this social worker’s re-amended document. It was further telling that, when the possibility of a contact order that would help to support A’s family relationships and her exposure to her culture and heritage was raised with the social worker, her first reaction was not to consider it in terms of A’s needs and characteristics but to protest that this would narrow the pool of prospective adopters.   A prime example of the tail wagging the dog.

 

 

  1. Overall, the local authority’s evidence was an effective demonstration of confirmation bias. The virtues of the permanence and security of a ‘forever family’, and which in abstract principle I do not doubt, nonetheless were sketchily asserted and additionally appeared to blind the social workers to the need to address those specific aspects of A’s needs and characteristics that did not fit with that proposal, and prevented any real analysis of permanent estrangement from her birth family.

 

 

  1. In particular, there was no evaluation of how that would work in combination with her likely cognitive difficulties, which would undoubtedly make it far harder if not impossible for her to benefit from sparse or indirect contact, or from using indirect resources such as the internet, language lessons or photographs to keep her in touch with her heritage and her family’s native languages and practices. There was no consideration whatsoever that there would be a high likelihood of adoption realistically resulting in an effectively drastic end to A’s ability to grasp aspects of her heritage, experience the warmth and breadth of her birth family, speak and understand some words of her parents’ native languages, feel and benefit from the sense of belonging to this large loving family with rich and coherent traditions – even if she could not live with them.

 

 

  1. The local authority’s approach was starkly epitomised in the following quotation and sole rationale in the initial ADM report: ‘given A’s age the only permanency option viable for A is adoption’. This assertion was made without any supporting analysis, let alone consideration of what other options might exist and how any option does or does not meet A’s needs and welfare interests.

 

 

  1. This flawed approach begs so many questions of this local authority. How is it that adoption appears to have become a kind of orthodoxy that requires inconvenient matters to be ignored and others to be twisted into its support? Is there an endemic automatic approach to a younger child’s age which results in a simplistic tick-box response instead of a careful analysis of her particular welfare interests? What sort of positive qualities would a birth family need to offer to be able to dislodge this approach to adoption and trigger a more balanced analysis and a preparedness to consider and address the full range of options? How has this local authority not followed the clear guidance of well-known law, and so failed to provide the evidence with which to ask the court to properly determine such a drastic and serious intervention in the life of this child?

 

 

  1. Ultimately, even with the further opportunities that the local authority had following the adjournment in November plus the further enhancement of the social worker’s written efforts at the outset of this hearing, the exposure of these failings led the local authority to perceive that it had again manifestly failed to meet its obligations and thus it withdrew its second placement application at this adjourned final hearing. The necessary evidence and reasoning that would have permitted this court to carry out the difficult balancing exercise had simply not been properly provided.

 

 

  1. These observations, and the local authority’s failure to meet these requirements of well-known law, become particularly pertinent given the local authority’s fundamentally flawed application for a placement order that led to the first final hearing being adjourned.

 

 

It is clear from what is said that both the original Child Permanence Report and the amended later versions were significantly flawed. The Judge summarises the statutory guidance and reminds us of the purpose of the Child Permanence Report – this is the document that fundamentally informs the Agency Decision Maker (the senior manager at a Local Authority, usually Assistant Director or Director level) as to the relevant information that leads that Agency Decision Maker (ADM) whether or not to make a decision that adoption should be the Local Authority plan. (An individual social worker cannot decide that adoption is the plan – they can recommend it to the ADM, but it is the ADM who decides). Therefore, the information in the Child Permanence Report (CPR) must be accurate, it must be fair, it must be balanced.

 

 

  1. The Statutory Guidance on Adoption provides that information must be accurate and distinguish fact from opinion:

 

1.17. Reports should be legible, clearly expressed and non-stigmatising. The information should be accurate and based on evidence that distinguishes between fact, opinion and third party information. The information should be checked to ensure that it is accurate and up to date before it is submitted to the adoption panel.

 

 

  1. The guidance goes on to explain why the accuracy of the CPR is so important:

 

2.64. The accuracy of the CPR is essential, since it will not only form the basis on which decisions are made about whether the child should be placed for adoption but will also assist the agency in matching the child with an appropriate prospective adopter, and will be the source of the information about the child on which the prospective adopter will rely. In due course the child, on reaching adulthood, will be able to request a copy of the CPR under the AIR and may have to rely on this document as the principal source of information about their pre-adoption history.

 

 

  1. The Court of Appeal has emphasised the legal requirement for the CPR to contain an analysis of all relevant placement options, including the reasons why adoption is the preferred plan. In Re B (care proceedings: proportionality evaluation) [2014] EWCA Civ 565, [2015] 1 FLR 884, concerning a successful appeal against a placement order, Ryder LJ observed that the CPR “ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated … That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made.”

 

 

 

 

  1. In Re S-F (a child) [2017] EWCA Civ 964 the Court of Appeal highlighted the need for reasoning to be specifically related to the child concerned:

 

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for the child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

 

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.’

 

 

There are regulations – The Restriction on the Preparation of Adoption Reports Regulations 2005 AND Adoption Statutory Guidance designed to ensure that this is the case. Pivotal amongst these is that the author of the Child Permanence Report must be qualified to write one, and must certify in the report whether they are so qualified, or whether their manager who is so qualified has supervised them in the writing of it. The qualification is three years of child social work, including direct experience of adoption work.   (In short, a social worker who is in the process of learning or has no direct experience of adoption work can only write the CPR if their manager (who HAS such experience) supervises them in the writing process. And by implication, as the manager has to sign off on the report that the manager is signing to say that the report does all it should.

  1. The guidance also sets out the expectations of the role of the supervisor:

 

1.15. For those individuals who are being supervised, their work should be supervised in accordance with their particular skills, experience and development needs. It is not necessary for the supervised social worker to be under the direct line management of the supervising social worker.

 

1.16. Where reports are being prepared by social work students, independent social workers or social workers who do not have the necessary experience, the draft report should be considered and discussed during supervision and signed off by a social worker with the necessary experience before the report is submitted to the adoption panel, another agency, or the court.

 

1.18. The person who prepares the report should sign and date it and indicate how they meet the requirements of the AAR. Where the person has been working under the supervision of a suitably qualified social worker, that social worker should sign the report as well, indicating the capacity they are working in and how they meet the requirements of the AAR.

 

 

In this case, the social worker was not suitably qualified, but instead of checking the box to say that she was not and having her manager sign to certify that it had been prepared under supervision simply checked the box saying that she was qualified, which she was not.

 

  1. Page 3 of the CPR specifically asks the author to confirm that they are suitably qualified under the Regulations to prepare this report. There is a numbered footnote next to that question, suggesting that further information on that point was available to the author while completing the document. The social worker’s response was “YES”.   The social worker has since explained that claiming that she was suitably qualified was simply an administrative error, an oversight. She should have marked NO, as she does not have the requisite experience under the Regulations.

 

 

  1. When the local authority was asked at court on the first day of the November hearing whether the social worker was in fact appropriately qualified and to provide details of her direct adoption experience the local authority’s response was that she does not have the requisite experience but “was supervised”.

 

 

  1. The space provided for details of the supervisor to be given has been left blank, which boxes also appear on page 3. It has been suggested that this is because the form uses a drop-down box format and that in clicking on YES the subsequent boxes did not then appear in order to be completed.

 

 

  1. However, I note that both the social worker and her team manager provided their signatures in the relevant boxes on page 3. They would both have had the opportunity and should have seen on the same page that they were signing, that the relevant boxes in relation to the Name and Signature of the supervisor were blank, and that the social worker had wrongly confirmed that she was a qualified person under the Regulations.

 

 

  1. I also note that in his statement the Director of Children’s Services referred to two individuals said to have supervised the social worker to the satisfaction of the relevant Regulations: her service manager and her assistant team manager. He claims that the supervision involved: ‘initial planning… including identifying who needed to be seen and interviewed, reviews of previously completed CPRs to inform the process of completion of the index CPR, and discussions about the conclusions of the same.’

 

 

  1. There are no details given of the capacity of either of these two individuals to fall within the relevant supervisor category, or of which of them carried out what supervisory tasks and exactly how that satisfied the regulations. There are no notes or records provided of supervision sessions. Tellingly, there is no assertion in his statement that either of them read the report or considered its contents beyond ‘discussions about the conclusions’. Clearly, neither of them signed the CPR, even though, if supervision were being adequately conducted, they would have expected this to be asked of them.

 

 

  1. It is clearly possible that the local authority may have committed a criminal offence under section 94 Adoption and Children Act 2002 and the Preparation of Adoption Reports Regulations 2005, but I cannot conclude whether that is the case or not. I note the Director’s refutation of this accusation. This is not the tribunal in which a summary offence is tried. I have not been provided with sufficient information to assist with any safe conclusion either way, nor would it be proportionate in the circumstances of this case to conduct an examination of all the background facts and the detailed nature of the supervision said to have been provided.

 

 

  1. At the very least, this ‘oversight’ was therefore missed by four people: the social worker, her team manager, her assistant team manager and her service manager. I am driven to suspect, but cannot properly put it higher than suspicion, that this oversight may possibly have been a consequence of ignorance of the requirements, the Regulations and of this offence.

 

 

  1. Additionally and significantly, adequate supervision should have identified the numerous deficiencies in content and analysis that are now admitted by the local authority.

 

 

  1. It also remains unclear who in the local authority holds the position of agency advisor as the individual with overall responsibility for quality assurance of the CPR, and whether this document was ever seen by this individual. This again begs the question as to what checking systems are in place, and how such an inadequate report, written by a social worker who did not have the experience required by law to write such a report, was permitted to be submitted to the ADM.

 

The CPR, as well as missing significant information and a balanced analysis, contained within it assertions as though they were fact, when the LA knew that the parents disputed those assertions and were not asking the Court to make findings. That sounds complex, so let’s unpack it

 

If there’s an allegation in proceedings that daddy hit Jack with a stick, then those allegations become a fact if :-

(a)Daddy admits it

(b)Daddy is convicted of it

(c)The Local Authority invite the Court to find as a fact that it happened and the Court, having tested the evidence does so.

 

 

In the absence of (a) or (b), if the Local Authority want to be accurate in the CPR they say “There is an allegation, yet to be proven, that the father hit Jack with a stick, the father denies it saying ___________, the evidence that the LA rely on that it happened is ___________ and the Court will be asked to find this as a fact”OR “There was an allegation made on _____ about physical mistreatment, this is denied and the Local Authority accept that there is not sufficient evidence for the Court to be asked to make a finding”

To simplify even further – this is the LA having their cake and eating it. Relying on the allegation to persuade an ADM that adoption is the plan, without going to the effort of proving it. This is WRONG.

 

  1. In addition to the above acknowledgements, it is also the case that the CPR contains much information presented as fact (for example pages 18-19) even though the local authority should have been aware it was disputed by the parents and it was not pursuing findings in respect of the disputed issues. This is particularly concerning given that paragraph 2.64 of the Guidance emphasises the need for accuracy, and that a CPR is often an important and sometimes sole source of information for a prospective adopter and for the child (see 2.64 set out at paragraph 82 above).

 

It is astonishing really that this needs saying, but it clearly does. As a Local Authority, if you are putting a disputed allegation onto the balancing scales to make decisions, then you need to seek to PROVE it. If you have decided you don’t think you can prove it, or that it isn’t proportionate to ask the Court to do so, then you DON’T GET TO PUT the allegation on the scales. Put up or shut up.

 

 

The ADM doesn’t escape condemnation

 

AGENCY DECISION MAKER’S DECISION –

 

 

  1. Given the manifest failures to comply properly with the Act and the Regulations and applicable guidance and case law in relation to the CPR, it was clearly not possible for the initial ADM to have made a valid and lawful decision based upon that material (Re B (Placement Order) [2008] supra, quoted in paragraph 78 above).

 

 

  1. It is also plain that the ADM in any event in her own right failed to comply with the relevant law and guidance in the decision dated 12 September 2019. The decision is set out in nine paragraphs which summarise the background history and then concludes with a single sentence as the only analysis or rationale for the ADM’s decision: “However, given A’s age the only permanency option viable for A is adoption”.

 

 

  1. This is shockingly poor and in breach of the relevant law and guidance. In particular:

 

–         The ADM failed to consider whether the social worker was permitted to prepare the report under The Restriction on the Preparation of Adoption Reports Regulations 2005.

 

–         The ADM failed to identify any arguments for or against adoption or long-term foster care, save for A’s age, and failed to give any reason for the decision, save for the child’s age.

 

–         The ADM’s sole reason appears to amount to an orthodoxy or set policy based on age alone and showed the local authority had failed even to consider long-term foster care as an option at all.

 

–         The ADM failed to consider any of the factors in the welfare checklist save for A’s age. This excluded any consideration of A’s background and identity, the impact of her needs and developmental issues, her relationships with her relatives (not only her parents but siblings and wider family), and the value of those relationships continuing.

 

 

 

  1. The Director of Children’s Services claims in his statement that the ADM had, in fact, taken the full welfare checklist into account, but had simply failed to record that exercise. He also accepts that the key arguments for and against adoption were not articulated in the report, and concedes that these failures to meet requirements resulted in a flawed placement application. In my judgment, his concessions do not go far enough and do not even reflect the local authority’s own guidance that was in existence at the time of the decision.

 

 

Nor does the Local Authority legal department

 

   It is the local authority’s legal team who will have taken the relevant steps to issue the placement application. In doing so, the lawyer handling this case should have read the relevant documents underpinning the proposed application. This should have immediately caused the lawyer to flag concerns relating to the adequacy of the CPR and the ADM decision, and whether the ADM could have made a lawful decision on the basis of the CPR.

 

 

  1.                      This should have led to the matter being referred, if it had not been referred already, to the agency advisor for review of the documents in question.

 

 

  1. It also should have led the lawyer to refer the matter back to the social work team, service manager or other senior member of Children’s Services in order to rectify the situation.

 

 

  1. The issue of a placement application should not become a rubber-stamping exercise, but a rigorous examination of whether the legal requirements for such a serious application have been met

 

I would completely agree with this. It might to implement it properly, need an adjustment of Court timetables. A Placement Order application is a huge piece of work, and because generally the social work evidence comes in right against the deadline if not already late, a Local Authority lawyer is working frantically to get the application issued as soon as possible, so that other parties can respond and the court timetable does not get derailed. We need to make time to do what is such a critical job properly, even if that means having to seek to vary the Court timetable to give it the time it needs. Child Permanence Reports are dense documents, the application form for Placement Orders is, as any Local Authority lawyer will tell you, the absolute WORST form to fill in, you’re doing it at the same time as checking all of the final evidence and care plans. It takes more time to do right than we are able to give it. And what normally has to give there is that the task is delivered in the time you’ve got, not the time you need.

(None of this is intended to be excuses, it is context. Similar things are true at every stage of this flawed process – everyone is working to the time they’ve got, rather than the time they need. Sometimes we need to stand up and say ‘we need more time please Judge, because…’ and let the Judge decide)

 

As a result of the flaws in this case, the Court considered whether to make a wasted costs order (i.e that the Council should pay for everyone else’s legal costs)

They were ordered to pay the costs of one day of the Court hearing

DISCUSSION & CONCLUSION

 

 

  1. Appropriately, the local authority has recognised that its actions place it at risk for the costs of at least part of the three days of the November hearing. The Respondents’ costs are all met by the Legal Aid Agency, and I have taken into account their respective similar positions in defending the funds of that agency and requesting that a costs order is made against the local authority for the three days.

 

 

  1. It was suggested on behalf of the local authority that these issues should have been drawn to the local authority’s attention by others at the Issue Resolution Hearing in late September. I reject that submission. None of these flaws should have been permitted to have tainted the documents and decisions of the local authority in the first place, none of the issues are novel but are well-known aspects of statute, case law and guidance. These were the standard responsibilities of the local authority, and not of the other parties nor the court.

 

 

  1. 137.                       Counsel also, ingeniously but unsuccessfully, attempted to suggest that the court should consider that the actions of the local authority were not ‘unreasonable’ or ‘reprehensible’ as they were the result of oversights rather than bad faith.

 

 

  1. The ordinary dictionary meaning of ‘reprehensible’ is ‘deserving censure or condemnation’ and derives from the latin verb meaning ‘rebuke’. I consider that each and every error identified in the local authority’s process deserves censure and could and should have been avoided. It was unreasonable to issue a placement application based on such material and, given the nature of the underlying errors, where the law relating to the standards to expect of evidence and analysis in adoption cases should be so well-known.

 

 

  1. The starting point here is that without the numerous and egregious errors of the local authority a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing.

 

 

  1. I do not consider that it was inappropriate to propose a plan for adoption and to seek a placement order, but the method by which it was pursued and applied for was riddled with avoidable error and failure to comply with important rules and requirements.

 

 

  1. Counsel for the local authority also urged upon me the positive steps taken by the local authority since November, and that the local authority could be said to have needed to have taken some significant time to consider the issues arising at the November final hearing and so should only bear the costs of a single day. The first point is a good one, and the second fails given that the errors should never have seen the light of day or gone ahead uncorrected in the first place.

 

 

  1. I welcome and bear in mind those positive steps outlined by the Director of Children’s Services, and consider that they go some way towards mitigating the local authority’s position. I have directed that the local authority should write to inform the court of the completion of each step identified by the Director and that I have mentioned in paragraphs 124-127 above.

 

 

  1.      I note that the pressures on the budgets of hard-pressed local authorities is very great, and that any costs order deprives this local authority of funds which can be used to assist children and families in need.

 

 

  1. In the circumstances, and bearing in mind the overriding objective, although it can quite properly be said that this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days, I am satisfied that it is sufficient censure to point this out in the context of the criticisms of this detailed judgment, to take into account the positive steps that are anticipated will prevent such avoidable errors in future, and to require the local authority to meet the Respondents’ costs of one day of the November hearing. Costs will be assessed.

 

 

 

 

  1. Finally, it will be noted that I have not named any single professional employed at this local authority. The local authority, quite properly and as required by case law, is identified. However, the problems appear to be systemic and wide-ranging. The identified problems touch each element of this local authority that has become involved in this case: social work, supervision, management, decision-making, legal advice, internal training, standards and checking systems, and ranging from social worker to lawyer to Director. Accordingly, it would be misleading and would attach too narrow a focus to name any single individual.

 

 

What this judgment is NOT, is a balance of whether long-term fostering is better than adoption for children generally. Instead, it is a careful reminder that in order to make a decision that involves permanent separation of a child from the parents and their family, the evidence has to be tested, it has to be accurate, it has to be checked, it has to be fair, and that processes, guidance and caselaw that are laid down to achieve that are ignored or bypassed not only at our peril but at the expense of justice and the children that we are working to help.

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