Tag Archives: article 6

Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

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Is there a meaningful right to silence in care cases?

Posted on February 4, 2013 by suesspiciousminds

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

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Robust case management has its place, but it also has its limits

Posted on December 27, 2012 by suesspiciousminds

 

A Christmas dash through  Re B (A child) 2012    (and when WILL the Court of Appeal revert to giving cases helpful names inside the brackets?)

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1742.html

 

 

This is a private law case with the usual cavalcade of allegations and cross-allegations.   In major part, the most serious allegations related to whether the mother had continued a relationship with a man, Mr C, who was suspected of having been very violent towards his own children.

 

The father hired a private investigator to observe the mother, to see whether Mr C continued to be a visitor to (or indeed a guest at) the children’s family home.

 

  1. The hearing started on Monday 1 October. It is now clear that there had been a flurry of activity immediately preceding it.
  1. On the weekend of 14 – 16 September, when S was staying with her father, she had said various things to him which suggested that far from the mother and Mr C having separated, Mr C was still part of day to day life. S said that:

i) Mr C had cooked her tea the night before she came to stay with her father; she came to stay on Friday 14 September so that would have been on Thursday 13 September.

ii) She had been swimming with her mother, E and A, and Mr C; A was born on 23 August 2012 so if she was right, that must have been a recent occurrence.

iii) She sometimes had to sleep with E because Mr C was sleeping in her mother’s bed with A; again, given the presence of A in the account, that must have been a recent occurrence.

  1. The father instructed a private investigator to observe the mother’s house. Mr Preece was that private investigator. He observed the premises over the back fence from 18 September to 24 September. A report by him was produced, stating that he had observed Mr C coming out of the back door of the mother’s house on Tuesday 18 September at 08.06 and on Thursday 20 September at 08.05. On Monday 24 September at 15.00, he saw Mr C leave the property and get into a car and drive away. Mr Preece’s report was appended to a statement from the father dated 27 September which was served on the mother just after midday on 28 September, that is the Friday before the hearing was due to start on the Monday.
  1. Also on 28 September, James Green, S’s allocated social worker, visited S at school and talked to her. There is an email from him in which he set out what happened [E11]. It reads:

“S said she has been ill and off school. She said she has been up in the night when sick. I asked her who was in the house. She said Mummy and that A and E were in mummy’s bed. I asked what about [Mr C]. She told me [Mr C] was also there. Also that he was helping her when she was ill last night.

I asked S about swimming. I asked her who goes swimming with her. She told me A, E and [Mr C]. She said [Mr C] has to stay out the pool and watch to look after A [sic].”

  1. The mother was then visited by Mr Green who discussed with her the evidence pointing towards Mr C having been in contact with S. Mr C was there too. Apart from admitting that Mr C was at the house at 15.00 on 24 September, both he and the mother denied the information that emerged from the investigator and from S.
  1. These last minute developments obviously placed all the parties in a difficult position. The judge had to decide what to do in response to them. It was clear that the matter was of great significance because the guardian made plain that if it was established that there had been unofficial association between the mother and Mr C, she would be recommending an immediate transfer of residence from the mother to the father.

 

 

 

The mother disputed that Mr C had been at the home, other than on the admitted occasion and wished to call a number of witnesses to that effect. In particular,

 

In relation to 18 September, she also wanted to produce documentary evidence in support. Her case was that on that day, Mr C was in Glen Parva near Leicester meeting his son who was being released from the Young Offender Institution there that morning. She was able to produce a form showing that Mr C’s son was being released that day. She also produced a copy of a bank statement of Mr C’s which showed that his Advantage Gold card had been used for a purchase in McDonalds in Leicester that day. However the bank statement did not record a precise time for the transaction. A telephone call to McDonalds had indicated that the transaction was at 9.19 a.m. but documentary proof of that could not be obtained at such short notice. It was common ground that if Mr C had been in Leicester then, the private investigator could not have been seen him at the mother’s property.

 

 

And the credit card transactions could, therefore, have become alibi evidence for Mr C, putting him in another town at the time that the private investigator claimed to have seen him at the mother’s home.

 

[Interestingly, neither the trial judge nor the Court of Appeal seem to me to have criticised the father for taking this step of placing mother under surveillance,  which would seem to me to have been a breach of mother’s article 8 right to private and family life]

 

The nub of the case therefore became, as the Court of Appeal succinctly put it, how the Judge was to manage to fit what would have been four days of litigation into the two days available.

 

  1. It is always difficult for a judge faced, as this judge was, with an urgent decision to take and insufficient time in which to take it. It is a dilemma which family judges regularly have to confront. How they resolve it will depend upon the precise circumstances of the individual case. As this court has often observed, a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.
  1. However, in this case, I am very clearly of the view that the judge’s case management decisions not only deprived the mother of the opportunity to answer the case against her but also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. It is therefore necessary, in my judgment, for the judge’s finding of fact and his consequential orders to be overturned and for the matter to be reheard in front of a different judge

 

 

The Court of Appeal considered that whilst it is open to a Judge to robustly case manage, and determine what evidence is to be called and heard, and to place time restrictions on cross-examination, the way it was done in this case effectively prevented the mother from placing her defence before the Court.

 

They were particularly troubled in the Judge’s decision not to bring Mr C into the proceedings or to obtain his credit card transactions.

 

  1. It appears that the judge considered that he could determine the truth or otherwise of the allegations about Mr C’s presence in the mother’s house through the prism of the evidence of Mr Preece and the mother. He said (§16):

“it seems to me that I have got to grasp the nettle of whether I accept Mr Preece’s evidence or whether I accept mother’s evidence.”

  1. Judges do sometimes have to decide, almost in a vacuum, whether or not to believe a witness. However, this was not such a case.
  1. This is perhaps most clearly demonstrated by the position in relation to Mr C’s credit card. The combination of the bank statement and the preliminary enquiries that had been made of McDonalds suggested that there was a realistic possibility that documentary evidence would be forthcoming that Mr C’s credit card was used in Leicester McDonalds in circumstances which, if Mr C was the user of the card, would make it impossible for him to have been seen by Mr Preece on 18 September. The judge was of course correct in saying that the fact that Mr C’s credit card was in Leicester did not necessarily mean that Mr C was. However, if more detailed bank records did in fact support the presence of the credit card there at the material time, it would have been an important piece of evidence for the judge to include in his evaluation of the totality of the evidence and not one, I think, that could be dismissed as robustly as the judge dismissed it. There would have needed to be consideration of how the credit card got there, if not with Mr C. Mr C’s own evidence would have been particularly important in that regard. And assuming that Mr C did not concede that he had not used the card in Leicester himself, counsel would no doubt also have wished to challenge Mr Preece with the evidence of its use and the impossibility of Mr C being in two places at once, endeavouring thereby to shake Mr Preece’s evidence that he saw him at the mother’s house.
  1. I am troubled by the judge’s comment that he would have been “unwilling to admit Mr C to these proceedings”. It is understandable that the judge wished to keep the focus on S and those immediately responsible for her care. He may well also have had in mind that, as we were told by counsel for the father, Mr C had earlier been involved in the proceedings but ceased to be so when he failed to provide his solicitor with any instructions. However, when it comes to making findings of fact, the court’s focus should be firmly on an analysis of what evidence is necessary to enable proper findings to be made. Of course, the urgency of the court’s decision can sometimes make it imperative that there be limitations on the evidence that is called, however relevant it would be. Similarly, the judge may find himself unable to permit a witness’s evidence to be adduced because it has been produced too late in the day or without regard to earlier case management directions or he may determine that it is disproportionate to the issues to permit reliance on it. However, matters such as those are different from a decision to decline to hear evidence from a material witness because, for some reason not related to their evidence, the witness is not thought to be an appropriate person to participate in the proceedings; such a decision is much more difficult to justify. Here Mr C was a material witness, indeed a central witness, not only on the issue of the bank card but also generally in addressing the allegations that he was present at the mother’s home when he should not have been. Subject to the need to decline to hear Mr C for reasons of urgency (to which I return below), I do not see how the judge’s decision to refuse to consider evidence from him and about the use of his credit card can be supported.

 

 

The Court of Appeal made a suggestion for how the Court could have proceeded in the time available without curtailing mother’s opportunity to present her case against the allegations.

 

  1. The judge was rightly anxious to protect S and conscious of the need to do so without delay. The father submits that the risk to S had increased if the mother was lying about Mr C’s presence in the household and that once evidence came to light to suggest this, the judge had to act. However, it seems to me that the judge needed to consider whether, rather than holding an immediate truncated hearing, there was any other way in which he could safeguard S’s welfare. I got the impression that in fact no one had suggested any alternative to him but a possibility which occurs to me is that he could have ordered that S stayed with her father, possibly under an extended contact order or alternatively a short interim residence order, for whatever limited time was sufficient to enable a fuller hearing to be arranged (see for example Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 [2005] 1 FLR 764 as to the circumstances in which interim transfers of residence may be made), either adjourning the case entirely to another day or, if feasible, making a start on the evidence with a view to resuming it at a later date.
  1. Given the option of an extended stay with the father by way of protection for S, I do not therefore see the judge’s choice as a stark one between running such risk as there was to her safety in the care of the mother or determining the factual issues on the material that could be produced and fitted into the two days of court time that were available. It may well be that the anxiety provoked by the impression that those were the only options led the judge to give too much weight to the urgency of the situation and the need to get on with the hearing. The decisions that he took in relation to the material evidence that the mother wished to adduce were no doubt the product of that anxiety but I am persuaded that they were not decisions that were properly open to him in this particular case, even making allowance for the breadth of his case management discretion.

 

The Court of Appeal conclude by stating that the case turns on its own facts, but emphasising that there is a balance in using the powers under Rule 22, and that a fair trial is still essential when using those powers.

 

I should say in conclusion that this appeal turns very much upon its own facts. Rule 22 of the Family Procedure Rules 2010 entitles the court to control the evidence in a case by giving directions. This is a wide power and can be used to exclude evidence which would otherwise be admissible. Robust case management therefore very much has its place in family proceedings but it also has its limits.

 

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It is lawful to make ICOs under repeated s37, I say it is lawful to make ICOs

Posted on November 30, 2012 by suesspiciousminds

 

A discussion of  RE K (Children) [2012] EWCA Civ 1549  which has just been decided in the Court of Appeal.

 

 

I previously blogged about the permission hearing here :-

 

 

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/

 The issue turns on this – in private law proceedings, the Court have a power to direct a Local Authority to make enquiries as to whether it is necessary to issue care proceedings – this is generally done when the Court begins to be so worried about the child’s circumstances that the possibility of care proceedings becomes a live one. The investigation is called a section 37 report.

 

The Court also has a power to make an Interim Care Order at the same time as making a section 37 direction – that is an order that allows the LA, if they decide to, to remove the child. So it is a very serious order, particularly given that :-

 

(a)   The LA haven’t applied for it

(b)   The parents won’t have seen a threshold document or social work statement in advance of the hearing

(c)   When making the ICO, the Court does not necessarily know what the LA will do with it  (or what the care plan is, in other words)

(d)   That the parents will not have known when coming to Court that day that there was a prospect of the child being taken off either of them and put in care  [as opposed to an application in care proceedings, where the parents are given notice and sight of the case against them and an opportunity, though a short one, to respond]

 

And so, making an ICO under a section 37 direction is a big deal. A very big deal, for article 6 purposes.  [I would have hoped that the Court of Appeal might have emphasised these things more than they did. They might, for example, have drawn the parallel between the rightly high hurdle for an Emergency Protection Order, where the parents have limited time to respond or defend themselves, with an ICO made of the Court’s own motion]

 

What this appeal turned on, was the vexed question of whether, if the LA do their investigation and say “We don’t need to issue care proceedings and don’t need an ICO” ,  the Court has power to make another section 37 direction and ANOTHER ICO.   [In effect, to make ICOs in an attempt to make the LA change their report and issue proceedings]

 

That’s what the Judge did in this case.

 

I was fully expecting the Court of Appeal to say that this was an abuse of process and goes further than the Act intends 

 

Unfortunately, from my perspective, and that of the appellants, the Court of Appeal thought otherwise, and that the Court can make an ICO under a further s37 direction even when faced with a s37 report that concludes that the LA have investigated and don’t propose to issue proceedings.

 

  1. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child’s circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made’. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.
  1. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge’s exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court’s concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus:

‘[The court] cannot require the local authority to take proceedings. The limit of [the court’s power] is to direct the authority to undertake an investigation of the children’s circumstances.’ [paragraph 123]

  1. Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.

 

 

Looking at the Act, there is nothing within it, or within case law that locks the Court into  one section 37 and one s37 ICO and one only, and that is how the Court of Appeal decided it.  But I respectfully think on the basis of natural justice, article 6 and proper process, it ought to have gone the other way.

 

For the avoidance of doubt, I think the decision is wrong, but not plainly wrong so that an appeal would succeed.

 

However, the Court of Appeal do say that where a Court does disagree with the s37 report and direct another one and make an ICO, it is incumbent on the Court to set out reasons.  [And that is why I don’t think they could be plainly wrong]

 

The Court of Appeal did say that if the ICO had been appealed at the time, the appeal would have succeeded, but this particular appeal was brought after the final Care Orders were made, the LA having yielded to strong judicial pressure and issued care proceedings

 

 

 

 

 

  1. Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother’s care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.
  1. It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B’s home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by ‘developing strategies’ to cope with Mr B’s behaviour. These concerns are mirrored in the note of judgment which continues:

‘I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children’s guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.’

On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.

  1. Mr Pressdee submits that the judge’s actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was ‘not minded to discharge the interim care order’ before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.
  1. Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.
  1. By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun’s circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.
  1. In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children’s guardian were significant procedural errors.
  1. If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.

 

 

 

On the broader issue of the appeal, that the Judge making the final decision about care orders had been biased, and in making his succession of ICOs under s37 he had effectively determined the need for care orders before considering the evidence as to whether they should be made, the Court of Appeal rejected this.

 

  • In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable. 
  • Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun’s carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge’s final conclusion should be set aside with the result that the whole question of this young boy’s future should, once again, be considered afresh by the court. 
  • For the reasons that I have given I would dismiss this appeal.

 [Though I think the appellants had a point here, a Judge who is making repeated s37 ICOs is basically both the applicant and the tribunal determining the application, and it doesn’t sit well with me. I have no way of knowing, of course, whether it was the Judge or the LA who had looked at the case the wrong way, but it does not sit well with me that a Judge who had effectively midwifed the care proceedings into being then determines the outcome of those same proceedings.   It seems to me that whilst justice might well have been done, I’m not sure that it was seen to be done. I have a great deal of sympathy for these parents, who never really came to terms with what they genuinely perceived as unfair treatment, and lost their children as a result of their unwillingness to engage thereafter.  My personal view is that when the parents asked the Judge to recuse himself from the case, that ought to have happened.  Again, sadly, I don’t think the Court of Appeal were plainly wrong on this. ]

 

Here’s the case, make up your own minds

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1549.html

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How do we deal fairly with vulnerable adults under suspicion?

Posted on November 30, 2012 by suesspiciousminds

 

 

It is not uncommon for adults involved in child protection cases to be vulnerable and have their own needs. It is not of course, always the case, but it is not rare.  Also, it is not uncommon for adults involved in child protection cases to be facing serious allegations and have to give factual evidence about whether they did, or did not, do something. It is again, not always the case, but it is not rare.

 

Inevitably then, there will be some overlap, where the person facing very serious allegations and having to give evidence about them is a vulnerable witness.

 

We have been lacking in guidance about this, save for the Court of Appeal decision that having a vulnerable adult as a potential perpetrator was not sufficient to dispense with the need for a finding of fact determination.

 

The Court of Appeal has just decided :-

 

Re M (Oral Evidence: Vulnerable  Witness)

 

I do not yet have a transcript, so this is the helpful summary from Family Law

 

 

 

Court of Appeal,  Thorpe, Rimer, Black LJJ, 21 November 2012-11-30

 

A fact-finding hearing was scheduled to determine whether the father had caused non-accidental injuries to the 18-month-old child. The father was found to have low intelligence and a psychologist recommended that due to his vulnerability, tendency to be manipulated and anxiety of speaking in front of people, special measures should be put in place when he gave oral evidence either by way of video-link or screen in court.

 

As video facilities were not available the father had to give evidence in court but a screen was not provided and the father’s application for an adjournment was refused. The father’s guardian acted as an intermediary but had no experience of doing so. Following the father’s evidence his representative applied for the trial to be terminated due to an infringement of the father’s rights under Article 6 of the Human Rights Convention. The judge determined that the father had capacity to give evidence and that he had caused the non-accidental injuries to the child. The father appealed.  

 

The appeal would be allowed. While the judge had a duty to manage the instant case in a busy court, that did not override the duty to ensure the father had a fair trial. The judge had erred in failing to specifically rule on the father’s application for an adjournment when it became clear that a qualified intermediary had not been available. Overall the judgment could not stand in light of the breach of the father’s Article 6 rights.

 

 

Hopefully, the full judgment will give some guidance to professionals and the Court as to how the article 6 rights of vulnerable adults are to be protected whilst the Court conducts the necessary determination of whether a child has been abused and if so, how that came about.

 

It raises also interesting questions as to whether a request for a cognitive assessment in cases where a fact finding hearing might be contemplated, should be tailored to include specific questions about giving evidence and any protective measures that should be put in place.

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