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Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.”

I continued (para 19):

“May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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An answer to an important question you didn’t know you had

 

 

 

The High Court in Re A Father v SBC 2014 have answered a very important question, albeit one that probably hadn’t fluttered across most people’s consciousness

If a child is at home under a Care Order, and the Local Authority want to use their powers to remove, can the parents obtain a s8 Human Rights Act injunction to stop them?

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html

 

[All underlining, as ever, as mine for emphasis]
As the High Court points out, the remedy ordinarily for a parent if the LA want to remove a child once a Care Order has been made is either an application to Discharge the Care Order or a judicial review, neither of which are that easy to get off the ground. And an application to discharge the care order won’t stop the LA removing in the interim.

The parents in this case made their application to discharge the care order, but knowing that the Local Authority proposed to remove the child before the case would be heard also made an application for an injunction under s8 of the Human Rights Act that would have prevented the removal.

They referred to the decision of the Court of Appeal in Re H (Children) 2011, in which a Judge granted an interim care order but ruled that removal of the child under that order would be a breach of the child’s article 8 right to private and family life. The Court of Appeal upheld that and said further that if the Judge had gone on to make the section 8 HRA injunction prohibiting removal there would have been jurisdiction for her to do so. This was, a very short judgment and the s8 HRA issue is dealt with very briefly, and in of course the context in that case that the Judge had already decided that it would be a breach of the child’s human rights to remove the child.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1009.html
The Court in this case at first instance refused to make the injunction and did not consider that it had jurisdiction to do so, given that the LA were exercising a lawful power.
In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

“Father applied to discharge the order of 7th November 2012 and he is entitled to make an application and be heard on it. I do not feel that it is improper of me to give my view on the likelihood of success of this application as it plays on my decision. In my view, it is extremely unlikely that he will succeed to discharge the order.”
The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

“I am being asked to glean the arguments from Re H and apply them to this situation, to import injunctive relief rights into this case to prevent D being removed tomorrow. I have tremendous sympathy for the parents. D has lived with them since birth, they both have difficulties, and they have received lots of support. They were both properly represented and both have consented to the order of 7th November 2012. They never appealed this order. What I am being asked to do by the father’s solicitor, who argued very strongly for the parents, is to, in effect, go behind that order.
In the absence of the local authority agreeing to give some breathing space and time, I cannot go behind that order. In some ways I wish I had the power to do so. I wish I could persuade the local authority to grant further breathing space as there is no emergency event which has precipitated the local authority wanting to take D tomorrow. They say that the progress they hoped for 15 months ago has just not happened. In the absence of me being able to persuade the local authority to agree to such a window, I cannot grant injunctive relief. There will still be a hearing to deal with the application to discharge. My present view is the father’s application will not be successful.

With a lot of reluctance, I have to dismiss the application for an injunction. I cannot see that I can do anything else. In practice, in accordance with the order of 7th November 2012, and in line with the care plan, D will be removed tomorrow.”

He therefore refused the application for an injunction and also refused an application for permission to appeal. He granted the application for a recovery order under s.50.

On appeal, the High Court, in the form of Baker J, took a different view on the Court’s jurisdiction to make a s8 injunction in these circumstances, and went back to remarks that the House of Lords had made in the notorious ‘starred care plan’ case

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10 [2002] 1 FLR 815 paragraph 49, that

“if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.”
It is true that Lord Nicholls added, at paragraph 62:

“one would not expect proceedings to be launched under s.7 of the HRA 1998 until any other appropriate remedial routes have first been explored.”

 

Baker J made it plain that jurisdiction to make a s8 HRA injunction existed and could have been used in this case (pointing out that the other remedial routes theoretically available weren’t appropriate)

 

 

 

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

Baker J also drew together some observations of other Courts on the onerous decision-making process for a Local Authority in this type of situation (see particularly his reference to Re G below)

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

 

 

and also brought Re B-S et al to bear on the process – which is something that none of the previous authorities about LA exercising powers under a Care Order had been able to consider, as it hadn’t existed at the time.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.
In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

A lot of very important stuff there (as you can probably tell, because I’ve underlined nearly all of it)

1. The same threshold that applies to removing a child under an Interim Care Order (that the child’s safety requires immediate separation) applies to removal from home under a Care Order (unless you go through the process below)
2. The LA have to conduct the full-blown Re B-S analysis of the pros and cons of each option
3. The child should stay at home whilst that exercise is carried out – unless his safety requires immediate removal
4. The parents must be fully involved in the assessment and analysis process and their views taken into account – it almost reaches the point, pace Re G, of the LA holding something akin to a Meeting Before Action (how the funding would be triggered to get the parents legal representatives able to attend is a bit tricky)
5. A Court can make a s8 HRA injunction to prevent the removal if the parents challenge the removal and want the status quo to remain pending litigation of a discharge of care order application.

6. We don’t get to this bit just yet, but it is vital – unless the removal is because the child’s safety requires immediate separation, if an injunction is what it will take to make the LA desist from their plan of removal, an injunction SHOULD be made

 

As was pointed out to Baker J, care orders with children at home had been a fairly rare and unusual circumstance, but with these two factors :-

(a) The 26 week deadline meaning that cases are finished at an earlier stage and with residual doubts; and
(b) The Court of Appeal’s decision in Neath Port Talbot

The number of such cases has gone up and is likely to continue to go up. As the number of children at home under Care Orders go up, the number of children whom the Local Authority seek to remove under a Care Order goes up too. So this issue affects more and more children as time passes.

With that in mind then, the High Court gave guidance on how Courts should address such care plans in future (this stuff is HUGE)
To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

(Read the last bit again – the presumption is that the injunction should be granted UNLESS the LA are able to show that circumstances that would justify an immediate removal are made out)

I think that there is an argument that current Care Orders at home ought to be read as though that 14 day notice period save for emergencies is implicit in the care plan, given this authority. In all future cases, it needs to be explicit, and this is an issue that all professionals need to be alive to.
Funding is an issue for parents (compounded in this case because the father had been represented through the Official Solicitor in care proceedings, and thus making a HRA application on his own was clearly something that was beyond him, and he had been fortunate in having lawyers who were prepared to assist him pro-bono whilst waiting for the O/S to pick the case up.

this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others [2011] EWHC 402 (Fam) and Wiltshire Council v N [2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.

 

(As we know, the exceptional circumstances in which funding might be given under LASPO involve cases where failure to provide funding would result in a person’s human rights being breached – the High Court here have set up a situation in which the child’s article 8 rights would be breached, and given illustrations of how vital it is that parents are represented to fight those – as we know from Airey v Ireland, it is not sufficient for the State simply to say that the State has given a person rights, if the person can’t actually access them or exercise them. This is setting up a judicial review for the future, I suspect)

 

A key question here is, where does this leave Neath Port Talbot? If the major feature of a Care Order over a Supervision Order is the power for the LA to remove the child (or that implicit threat) and the power/threat is neutered, what on earth is the value of having a Care Order at home (other than duration – a Care Order can last until the child is 18, whereas a Supervision Order is limited to one year at a time, up to a maximum of three years)

For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.

 

An important case – I expect it to feature in the next view from the President.