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Ostriching and adverse inferences

The law in relation to decisions not to engage with assessments and the consequences that may flow from this

I ended up scratching my head about this issue about a month ago – where a parent doesn’t engage with assessments and doesn’t provide samples for drug testing, what can the Court do about it? It seemed a very obvious answer that the Court would be invited to draw adverse inferences from the failure to cooperate, but I couldn’t easily lay my hands on the authority for that proposition. It turned out to be more elusive than I had imagined, so having done the research and written it up, it was rather vexing to receive an email minutes later to say that the parent was now willing to engage rendering all my hard work pointless.

So, waste not want not. At the very least it might save someone else having to do all the legwork.

1. The starting point is that under the Children Act 1989 and civil proceedings generally, the burden of proof in any allegation falls upon the party making it, and the standard of proof is the balance of probability. Thus, in care proceedings, it will be the task of the Applicant to establish that it is more likely than not that the parent’s behaviour, history or failings amount to behaviour that it is not reasonable to expect a parent to provide and that it amounted to either causing the child significant harm or establishes a likelihood of significant harm in the future.

2. In a case where the allegation is, say, mental health instability or substance misuse, it is not a burden on the parent to demonstrate that their mental health is now fine, or that they are no longer using heroin. (This misapprehension works its way quite regularly into language used outside Court – “This mother needs to show me that she’s changed” and so on, but it is not a legal burden on the mother at all.)

3. If the Local Authority satisfy the Court that an assessment under Part 25 is necessary to establish the history and prognosis of mother’s mental health, or the current status of abstinence from or usage of substances in order to make confident predictions about the future, what happens where a parent declines to participate?

4. The Court of Appeal in S (Children) [2006] EWCA Civ 981 addressed particularly where the limits are in the family Court of compelling parents to produce evidence.

5. 23. I move, therefore, from the clear need for the court to receive the disputed evidence to the manner by which it should do so. I have no doubt that the submission is correctly made on behalf of the father, and today correctly conceded on behalf of the local authority, that the court cannot compel a party, against his will, to procure the evidence of a person not already a witness in proceedings. A party can be permitted to file evidence which he wishes to file; and, in civil proceedings, he can be compelled to file evidence from himself. He cannot, however, be compelled to file evidence to be collected by him from a third party; for he has no power to compel the third party to co-operate in enabling him to comply with the order against him. So, yes, the father is right: he should not have been subject to purported compulsion to file a report by his psychiatrist. The judge seems to have recognised as much when, in judgment, he observed “although it does not seem to me that the father can be forced to, the evidence from [the father’s psychiatrist] can be obtained now.” Notwithstanding his doubts the judge for some reason proceeded in his actual order to direct the father to file a report from the psychiatrist.

6. A parent can be compelled to provide a statement from themselves within care proceedings (there is no “right to silence” as a result of s98(2) and failure to produce a statement as directed could be treated as contempt and breach of an order and punishable by committal Re LR (Children ) 2013 )

7. There is, however, a right to silence, when the application is for committal, and the parent must be informed by the Judge that he or she does not HAVE to go into the witness box and is entitled to decline the option of giving evidence. The Court of Appeal confirmed in Khawaja v Popat & Anor [2016] EWCA Civ 362 that the Court can draw adverse inferences from the parents decision to exercise that right to silence (this is NOT the case in criminal law, but is the case in civil law)

27.As the proceedings led potentially to a criminal penalty, the appellant could not be compelled to give evidence. He could have remained completely silent and could have addressed submissions as to the strength or weakness of the evidence adduced by the respondent. However, he took a half-way course. He provided two affidavits in explanation, but he declined (as was his right) to have that evidence put to the test in cross-examination.

28. It might have been unwise for the judge to say to the appellant so bluntly that “…the reality is that if you don’t go in the witness-box it is likely that I will infer that you won’t go in the witness-box because you know you are lying…”. However, it seems to me that his overall remarks to the appellant, at the end of Mr Roseman’s opening of the case for the respondents, were correctly in accord with the law and practice as reflected in paragraph 81.28.4 of Civil Procedure 2015 Vol. 1 (p.2460) as follows:

“A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent (Comet Products UK Ltd. v Hawkex Plastics Ltd. [1971] 2 QB 67, CA). It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence (Interplayer Ltd. v Thorogood [2014] EWCA Civ 1511, CA…)…”
29.It is entirely clear from the transcript of the judge’s exchanges with Mr Roseman that he recognised fully the burden of proof that was upon the respondents and the standard of proof required to discharge that burden. The judge pressed Mr Roseman closely upon the evidence adduced in support of the application. I do not accept Mr Hendron’s submission that the judge concluded that the appellant’s silence on its own proved his guilt (contrary to the principles emerging from R v Cowan [1996] 1 Cr App R 1 at 7). The judge was conspicuously aware of the burden resting upon the respondents throughout. In my judgment, it seems clear that the judge recognised that the respondents’ evidence produced a case for the appellant to answer; he found the explanations given in the appellant’s affidavit evidence unsatisfactory and in the absence of oral evidence he drew the inference open to him that the appellant’s explanations were untrue.

30.It seems to me further that the law and practice as briefly stated in Civil Procedure (Loc. Cit. supra), and applied by the judge, is entirely consistent with the jurisprudence of the European Court of Human Rights, as reflected (for example) by the following passage from the judgment in Murray v UK [1996] ECHR 18731/91 at paragraph 47:

“On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.”

“Wherever the line between these two extremes is to be drawn, it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.”

“It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government have pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.”

“Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.”

8. If a parent has within their possession and control documents or evidence, this can also be ordered to be produced. But the thrust of the passage in Re S 2006 above is that a parent cannot be compelled to participate in a psychiatric assessment if they do not consent. The Court has no power to compel them to do so.

9. However, the Court of Appeal provided a recommendation for such a scenario :-

24. It must be remembered, however, that the request for an order that the father should file a report from the psychiatrist was only the fall-back application made on behalf of the local authority. Their primary application was for an order for the disclosure of the records held by the psychiatrist and the linked records held by the father’s GP. Granted the relevance of the father’s psychiatric condition, that application was in my view unanswerable. In the ordinary case, in which the medical records are held by the doctors, the appropriate direction would have been to grant leave to the local authority to issue what in the Division we still have to call subpoenas duces tecum and ad testificandum, returnable either at the outset of the substantive fact-finding hearing or, surely more conveniently, at a prior review hearing, at which the doctor or doctors can produce the records to the court and answer such questions as will enable the parties both to make sense of them and, more broadly, to collect from them the focussed information about the parent’s likely condition at the time of the event. In this case, however, we are given to understand that the medical records are already in the possession of the father; and so in my view there is no impediment to a straightforward order for his immediate disclosure of them to all other parties. To that order I would attach permission to the local authority and the guardian, if so minded, to show the records to a psychiatrist of their own choosing; and, having studied the records and perhaps having instructed a psychiatrist to educate them about their significance, the local authority and/or the guardian will be free at the next review hearing to ask for leave to issue a subpoena ad testificandum against the father’s psychiatrist. I have to say that, once the court in care proceedings has decided in principle that such information should be obtained and once the parent has had the benefit of legal advice, this cumbersome method of obtaining it is usually circumvented by his agreeing, as a recital to the order, to procure a report from the psychiatrist upon the matters ruled to be relevant. Perhaps, now that this appeal is reaching its end and now that he can be given further and clearer advice, the father will be amenable to that elementary level of co-operation. But we should not count on it. It follows that I propose that the local authority’s cross-appeal and, insofar as it relates to the direction that the father should file a psychiatric report, the father’s appeal should be allowed; and that the orders which I have indicated should be substituted for the direction made by the judge. In all other respects the father’s appeal should in my view be dismissed.

9. The Court does, therefore, have jurisdiction to compel production of the medical records and can, if a party has made an application under Part 25 for an expert, direct that the expert report on a paperwork basis, considering said records. (And the Court of Appeal express hope that given that scenario, a parent would reflect that a report might be more favourable and balanced and nuanced if the expert has the benefit of speaking to them about these issues and thus change their mind about participation)

10.However, such an option is not available with drug or alcohol testing. If the parent is not consenting to the production of samples, alternate methods of collecting the samples cannot be used.

11. The issue therefore is whether the Court is entitled to draw adverse inferences or conclusions (specifically – does the decision by a parent not to consent to providing a sample amount to evidence that the tests if undertaken would demonstrate something unfavourable to the parents case?)

[2003] EWHC 2011 (Fam) considered the issue of adverse inferences where a parent declined to give evidence at all or refused to answer particular questions

13. As a general rule, and clearly every case will depend in its own
particular facts, where a parent declines to answer questions or, as here, give
evidence, the court ought usually to draw the inference that the allegations are

13. A decision not to consent to provide samples for the purpose of alcohol or drug testing is not strictly a parent declining to give evidence, but rather a parent declining to provide additional evidence which might establish things one way or another.

14. It might be analogous to the refusal to submit to DNA testing in paternity cases. The Court in those cases are entitled to draw ‘such inferences, if any, from that fact as appear proper in the circumstances’ (s23(1) Family Law Reform Act 1969) – the Court of Appeal ruled in Re G (Parentage : Blood Sample) 1997 1 FLR 360 that where a putative father refused to submit to blood tests then a forensic inference should be drawn and since the forensic process was advanced by the truth being told in court, those who obstruct that process will have an adverse inference drawn against them.

15. Whilst this is a helpful illustration, as the statute in question specifically provides in s23(1) the Court’s power to draw inferences, and the Children Act 1989 does not, it does not provide a definitive answer.

16. The Supreme Court, dealing with an ancillary relief case, considered the issue more broadly, in Prest v Petrodel 2013

44. In British Railways Board v Herrington [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open-ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300:

In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340

17. It is suggested, therefore, that following the guidance in Prest v Petrodel (The ‘modification which I shall come to’ being very specific to ancillary relief cases and we can thus ignore it) , where the Local Authority have provided evidence which provides a reasonable basis for coming to a conclusion about substance misuse or alcohol misuse, a parent who chooses to be silent and not provide evidence by way of scientific testing (unless credibly explained) may have the Court determine that their silence turns a prima facie case into a strong or overwhelming one.

18. A Local Authority could not simply ask for a drug test as a fishing expedition and ask the Court to draw adverse inferences if a parent refuses to give one – they need to establish an evidential basis for suspicion that a test is necessary. (Previous history, allegation by a credible witness, evidence of the parent acting in a way which is consistent with drug misuse or so on)

(Why Ostriching? It’s lawyer slang for when a client is burying their head in the sand and pretending that it will all just go away if they ignore it. Actually, ostriches don’t do this – though they do dig holes in the sand to bury their eggs, and occasionally put their heads in those holes to turn the eggs hence the myth.)

Octavia, looking for Hartley and Topov