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Magical sparkle powers (repeat to fade)

 

The quirky case of Mostyn J and the using magical sparkle powers to place a child in quasi secure accommodation under inherent jurisidiction (child met test for secure but no secure beds) but wait, the child is consenting to their detention, has come up for appeal

 

Original blog here (and yes, I super simplified the issues in that quick summary)

https://suesspiciousminds.com/2018/04/19/magical-sparkle-powers-secure-accommodation-and-consent/

 

The appeal is here

 

Re T (A Child) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2136.html

 

In the Mostyn J case, the Judge decided that whilst a valid and enduring consent could block the Court’s use of the inherent jurisdiction (and perhaps s25 Secure Accommodation), what he was presented with was not in fact a genuine and enduring consent. The young person had capacity to agree to their detention, but the Judge thought that is was not a consent given with the intent of honouring it (which may be supported by the evidence of said young person escaping from the secure unit shortly afterwards)

 

The Court of Appeal decided that Mostyn J was wrong, though not for the reason the appeal was brought. The appeal was saying ‘don’t add that ‘enduring’ component to consent’  and the Court of Appeal said that in a secure accommodation or quasi-secure accommodation setting, lack of consent of young person wasn’t required and thus their giving consent did not prevent a Judge making the order or using the inherent jurisdiction.

In effect, Mostyn J had been persuaded that consent was more significant than it in fact was, and it wasn’t necessary to add the gloss that he applied to reach the right outcome.

 

The technical bits follow in bold, skip if you like – there’s better stuff after that of a wider interest

 

Discussion: Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person?

  • Although the point is now conceded for the purposes of this appeal, it is helpful to record brief reasons why the Appellant’s concession on the question of whether a lack of valid consent is a pre-requisite to the exercise of the inherent jurisdiction to restrict liberty was correctly made.
  • On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty. That conclusion is established on the following four bases:

 

a) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;

b) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;

c) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;

d) It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

(a) The statutory scheme does not require lack of consent

  • The consent, or lack of it, of the young person who is the subject of a secure accommodation application is not a factor to which reference is made in any part of the statutory scheme under CA 1989, s 25 or SWW(W)A 2014, s 119. The statutory scheme has been held to be compatible with, and not in breach of, ECHR Art 5.
  • The fact that ‘consent’ is not a factor in the statutory scheme, in contrast to the requirements of Art 5 when determining whether there has been a deprivation of liberty as established by the second element of Storck, points up the essential difference between the two processes. Section 25 and s 119 are concerned with the authorisation of the placement of a child in secure accommodation: “… a child … may not be placed … in accommodation … for the purpose of restricting liberty (“secure accommodation”) unless …”. By s 25(2) and s 119(2) regulations may ’empower the court from time to time to authorise a child to be kept in secure accommodation’ for such period as the regulations may specify. Where the statutory criteria in s 25(1) or s 119(1) are satisfied the court ‘shall’ or ‘must’ ‘make an order authorising the child to be kept in secure accommodation’ (s 25(3) and s 119(3)) – see Re M (Secure Accommodation).
  • The effect of a court order under s 25 or s 119 is, therefore, to ‘authorise’ the applicant local authority to keep the subject child in secure accommodation. The effect of authorisation under s 25 is most clearly demonstrated by s 25(5A) which spells out the effect of a secure accommodation order for a placement in Scotland:

 

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. [emphasis added]

  • In contrast to a sentence of imprisonment passed by a criminal court, a local authority is not required to restrict the liberty of a young person who is the subject to a secure accommodation order; s 25 and s 119 do no more than establish a system for the authorisation of such placements. The statutory scheme is therefore focused upon whether or not the factual circumstances are such as to be sufficiently serious to justify restricting liberty.
  • The welfare of the child, whilst relevant, is not the paramount consideration for a court when determining an application for a s 25 or s 119 order (Re M (Secure Accommodation Order) [1995] 1 FLR 418). The judgment of Butler-Sloss LJ (as she then was) in Re M justifies reading in full, but the reasons supporting her conclusion, with which Hoffmann LJ and Sir Tasker Watkins agreed, included the following:

 

a) Section 25 sits within Part 3 of CA 1989 which is structured to cast upon the local authority duties and responsibilities for children in its area, including those who are being looked after.

b) The general duty of a local authority under Part 3, which is to safeguard and promote the child’s welfare, is not the same as the duty of a court under CA 1989, s 1 to afford paramount consideration to the child’s welfare.

(b) No domestic authority requires there to be a lack of valid consent

  • Save possibly for the decision of Keehan J in Local Authority v D to which I will now turn, and, of course, Mostyn J’s decision in the present case, this court has not been taken to any authority for the proposition that a lack of valid consent is a necessary jurisdictional pre-requisite before the High Court may exercise its inherent jurisdiction to authorise restriction of liberty. The role of the High Court, in holding as closely as possible to the scheme of s 25 and s 119 in these cases, is that of determining whether a local authority is to be authorised to restrict liberty.
  • This court was told that, in the present case, since the making of the order in March, the regime at the second placement has been relaxed so that the appellant now spends over three hours each day of ‘free time’ with the expectation that the amount of free time will increase by 30 minutes each week. The relaxation of the regime was a matter within the discretion of the local authority under the structure of the order made by Mostyn J who, rather than requiring restraint, had simply sanctioned its use.
  • In like manner to the effect of a secure accommodation order, an order under the inherent jurisdiction in these cases does not itself deprive a young person of his or her liberty, it merely authorises the local authority (or those acting on their behalf) to do so. This distinction was, unfortunately, not made sufficiently clear by Keehan J in Local Authority v D when he summarised the issue before the court (at paragraph 9) in terms of determining whether or not C was deprived of his liberty. With respect, the issue in such cases is, rather, whether the court should give a local authority the authority to deprive a young person of their liberty should they consider that that is necessary. In the event, Keehan J’s determination turned on the different basis that, because of the agreement of the young person it was not necessary for the court to give such authority to the local authority at that time.

 

(c) The different perspectives of Article 5 and an application for authorisation

  • This further consideration also points to the same overall conclusion. A determination that a person has or has not been deprived of their liberty in breach of Art 5 will often be a retrospective evaluation of the individual’s current and past circumstances. In that regard the question of whether or not they have or had consented to the restrictive regime is likely to be an important element; one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime. This is in contrast to the court’s role under s 25 and s 119 or under the inherent jurisdiction, where the court’s perspective is normally prospective, determining whether circumstances exist that justify a local authority placing a child or young person in accommodation for the purpose of restricting their liberty.

 

(d) The purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

  • The need for an order authorising a local authority to place a child in the equivalent of secure accommodation derives from two factors. The first, and fundamental aspect, is to ensure that the absence of available secure accommodation does not lead to the structure imposed by s 25 being avoided. The terms of s 25 should be treated as applying to the same effect when a local authority is placing a child or proposing to place a child in the equivalent of secure accommodation. When viewed from this perspective, it is clear that a local authority cannot invest itself with the requisite authority and that a child’s agreement or consent cannot authorise such a placement. Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.
  • The second factor derives from Article 5. The court’s authorisation means that if the authorisation is used for the purposes of depriving a child of their liberty the legal requirements of Article 5 will also have been fulfilled: see Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526. The court will necessarily have determined that the child’s welfare justifies, or even requires, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.
  • Drawing these matters together, once it is seen that the court’s power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be ‘valid’ or ‘enduring’ on the day the order is sought, or at any subsequent point, or that a ‘valid’ consent is later withdrawn, is irrelevant to the scope of the court’s powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
  • This approach, where the question of whether or not an Art 5 deprivation of liberty occurs depends upon the facts on the ground at a particular time and is not necessarily required by, or created by, the court order but by the act of those caring for the child under the court’s authorisation, accords with the ECtHR jurisprudence summarised at paragraph 23 and onwards above.

 

Further, the need for there to be an absence of valid consent before the Storck criteria are established, does not mean that the presence of an apparently valid consent prevents the circumstances from amounting to a deprivation of liberty (see De Wilde, Ooms and Versyp, Storck para 75 and Buzadji). In terms of domestic authority, paragraphs 23 to 31 of MM and PJ could not be more clear – “where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty”. In like manner, it is to be recalled that the court in De Wilde stated:

“Finally and above all, the right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it” [emphasis added].

Conclusion

  • It inevitably follows from the above analysis, and from the Appellant’s concession, that Mostyn J’s initial misgivings were well-placed but that he was unfortunately drawn into a legally erroneous position by accepting that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application. In the circumstances any question of the judge being correct in adding the gloss of ‘enduring’ to this non-existent jurisdictional requirement falls away.
  • I should make clear that this case does not concern the placement of children in other than the equivalent of secure accommodation. Different considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty. In that situation, subject to De Wilde, the question of whether or not the subject of an application to authorise the deprivation of liberty of a young person under the inherent jurisdiction is in agreement with the proposed regime may form part of an evaluation of whether such authorisation is necessary. Local Authority v D is an example of a case where the judge concluded that the young person’s stance rendered a court order unnecessary.
  • Conversely, as referred to above, once the court has authorised placement in secure accommodation or its equivalent, it may properly be considered that the matter can be left to those who are authorised to operate the care regime on a day to day basis and, as in the present case, they may work with the young person in a flexible manner using their powers of restriction or deprivation when necessary, but relaxing them when it is safe and appropriate to do so. Such issues are fact-specific to each case and are not matters of jurisdiction.
  • The Appellant’s appeal, as it had become by the close of argument, is now no more than a challenge to the judge’s discretion and could only succeed if this court were to be satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There is no basis for holding that Mostyn J was ‘wrong’ to authorise restriction of liberty in this case. Indeed, as the judge himself observed, the breakdown of the placement so soon after the January order had been made vindicated his determination on that occasion; it also justified the making of a further order in respect of the new placement.

 

 

The Court of Appeal also made broader comments about the chronic and acute lack of beds for children who present with these difficulties, and the inherent unsuitability of using the inherent jurisdiction as a sticking plaster for the lack of bed space.

 

  1. This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).
  2. Official figures published by the Department for Education[1] show that, as at 31 March 2018, there were some 255 places in secure children’s homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children’s home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children’s homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children’s home, or is a children’s home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court’s permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.
  3. Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.
  4. This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE [2017] EWHC 2458 (Fam):
    1. “5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction.  This week I have been sitting here at the Royal Courts of Justice as the applications judge.  This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances.  There are two yet further similar cases listed before me today.

6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week.  Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children.  This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

  1. It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament

 

The need for precision about the sort of restrictions that a children’s home can place on children and the need for training, inspection and monitoring of homes that are authorised to do so sprang out of the Pindown scandal, and the ingredients are in place for us to slide back into those sorts of dreadful abuses that began with good intentions but got so far removed from how the State ought to be dealing with its most vulnerable children. I hugely applaud the Court of Appeal here – the lack of secure beds is an accident waiting to happen.

 

The wider issues and the need for scrutiny

  • Before concluding this judgment, I return to the concern (referred to in paragraph 5) that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children’s homes. Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm’s length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.
  • The wide-ranging and powerful submissions of the ALC raise issues which are beyond the compass of this appeal but nevertheless deserve consideration in other places. The ALC identifies the following four key questions arising from the fact that a parallel system now exists under the inherent jurisdiction with respect to the secure accommodation of young people who would otherwise fall within the statutory code:

 

i) What is the impact, if any, on children of there being in use two parallel processes?

ii) Is there a disparity in the adherence to due process obligations or in the safeguarding a child’s access and participation in court decisions between these two processes?

iii) Is there a disparity in the practical protection afforded to children through the two processes which may result in arbitrary unfairness?

iv) What are the effects on the Convention Rights of children and the protection of their Article 5 and 6 rights of having two processes and in particular when does the ECHR case of Storck apply?

  • In the circumstances, a direction will be made that a copy of the judgments in this case is sent to each of the following: the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.

 

 

Having ended the blog proper, two bits of shameless self-promotion (I say shameless, but I’m scarlet and writhing with shame as I type, honestly)

 

  1.  I am on the shortlist for Legal Commenter of the year at the Family Law Awards.  I’ve won this before, so I didn’t want to campaign for it, feeling that the goodness should be shared. But it was amazing to be nominated, and the words said were very kind.  My readers should vote, if they can spare a minute, and if you want to vote for me that’s very sweet (but don’t feel obligated to do so)  . Voting ends on Friday 19th October, so there’s time if you want to.   https://www.familylawawards.com/ehome/familylawawards2018/vote
  2.  As this blog is about Secure Accommodation, a plug for my book In Secure, which is fiction and set in a secure accommodation unit with ten children – there’s magic, adventure, romance, shocks and scares. It’s Tracy Beaker with Tentacles basically. If you haven’t read it yet, I’d love you to read it. You can get a e-book for 99p and the gorgeous paperback for eleven quid.  If you have read it, please put a review on Amazon, it makes a huge difference. https://www.amazon.co.uk/Secure-Andrew-Pack/dp/1911586947/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1539007741&sr=8-2

 

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Mostyn J gets dissed by Court of Appeal despite not being the Judge in the case being appealed

 

Re A Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1718.html

Long-time readers will have been enjoying the regular frank exchange of views and pleasantries between Mostyn J and the Court of Appeal, but this is a new one.  The Court of Appeal in this case overturned a Judge who had been following Mostyn J’s guidance in a High Court case and therefore had the opportunity to say that Mostyn J was wrong as a sideswipe.

 

Did they resist this?

Reader, they did not.

 

  1. In A County Council v M & F, upon which the judge relied, Mostyn J having set out passages from Re B (and Baroness Hale’s confirmation of Re B found in Re S-B [2010] 1 All ER 705, SC,) went on:
    1. “16. Thus the law sets a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”. In AA v NA and Others [2010] 2 FLR 1173, FD, I attempted to summarise these principles at para 24:

17. Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer.”

  1. With the greatest respect to the erudition of Mostyn J’s arithmetical approach to the application of the ‘simple balance of probabilities’, I do not agree that it represents the appropriate approach, and it seems to me that this passage had, in part, led the judge to decide that, in order to determine whether the local authority had discharged the burden of proof to the necessary standard, he had to adopt the same approach. As a consequence, the judge mistakenly attached a percentage to each of the possibilities and thereafter, added together the percentages which he attributed to an innocent explanation and before concluding that, only if the resulting sum was 49% or less, could the court make a finding of inflicted injury

 

Perhaps envisaging a ‘says who?’ response to their very polite (if you are not a lawyer) ground and pound of Mostyn J, the Court of Appeal pre-empt this

 

  1. In A County Council v M & F Mostyn J had drawn on the shipping case of The Popi M ( Rhesa Shipping Co.S.A. v Edmunds, Rhesa Shipping Co.SA v Fenton Insurance Co Ltd) [1985] 1 WLR 948 HL,(Popi M) as an example of ” the burden of proof coming to the rescue”[18]. Lord Brandon, in his celebrated passage in Popi M, in declining to apply the dictum of Sherlock Holmes to the effect that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth” said:
    1. “The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated

  1. Recently (and after A County Council v M&F), in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 Lord Justice Toulson (as he then was) considered the use of an arithmetical approach to the standard of proof. Having first considered Popi M he went on:
    1. “33. Lord Brandon concluded, at 957, that the judge ought to have found simply that the ship owners’ case was not proved.

34. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.

35. The civil “balance of probability” test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a “preponderance of the evidence”. In the British Commonwealth the generally favoured term is a “balance of probability”. They mean the same. Sometimes the “balance of probability” standard is expressed mathematically as “50 + % probability”, but this can carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a case for believing that an event was caused in a particular way is stronger than the case for not so believing, the process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the probability of some event having happened in percentage terms is illusory.

36. Mr Rigney submitted that balance of probability means a probability greater than 50%. If there is a closed list of possibilities, and if one possibility is more likely than the other, by definition that has a greater probability than 50%. If there is a closed list of more than two possibilities, the court should ascribe a probability factor to them individually in order to determine whether one had a probability figure greater than 50%.

37. I would reject that approach. It is not only over-formulaic but it is intrinsically unsound. The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not. In deciding a question of past fact the court will, of course, give the answer which it believes is more likely to be (more probably) the right answer than the wrong answer, but it arrives at its conclusion by considering on an overall assessment of the evidence (i.e. on a preponderance of the evidence) whether the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen)”.

  1. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman).
  2. In my judgment what one draws from Popi M and Nulty Deceased is that:
  3. i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence.

ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances.

iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.

 

I’m sure that Mostyn J is delighted by the dismissal of his P>0.5 formulation as ‘pseudo-mathematical’

 

The case they were talking about is one I wrote about here

 

https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

 

but for my part, the more troubling one, where the mathematics (or pseudo-mathematics) applied to the balance of probabilities directly affect the outcome is here  (three years later, building on Re M and F  and building on the Popi shipping law case but overlooking the Nulty civil negligence about a fire and electrical engineering  law case)

 

https://suesspiciousminds.com/2014/02/07/mostyn-tacious-a-judgment-that-makes-your-temples-throb/

 

Anyway, the soup and nuts of both of them is that Mostyn J looked at a variety of explanations, malign and benign for incident X and then ascribed percentages to them, and saying whilst the malign explanation might be more likely than not than any individual benign explanation, he was instead totalling up the chance he had ascribed to each of the benign explanations and deciding that he could not say that the chance of malign explanation was higher than all of the possible benign explanations added together.  So what he was doing was saying  ‘There are 3 explanations. I think that the most likely of those three is that mother did this.  But if I ascribe percentage possibilities to each option, I might still decide that the two alternative explanations add up to more than 50%, so I’m not able to say that mother did this’

 

Anyway, the Court of Appeal say that the Court should not get into such esoteric exercises and simply say that on the balance of probabilities what do they say is the more likely than not explanation for event X.  Which is good news for anyone who doesn’t want to take a course in probability theory.

 

This case is desperately sad, even by care proceedings standards  – a ten year old girl is found dead. The police assume accidental strangulation by falling off a bunk and getting trapped in decorative netting. Poppi Worthington style errors are made in the investigation, and then evidence comes to light suggesting that the ten year old had been sexually assaulted (there is talk of DNA being present in intimate areas) and concerns then arise that the ten year old either hung herself intentionally or was killed  (deliberately or unintentionally as part of choking).  That obviously had massive implications for the other five children of the family.

At final hearing, the Judge concluded that the evidence that the girl was sexually assaulted was made out, but he could not say who perpetrated the assault  (there’s some odd wording about why the LA were refused their request to call the police officer who analysed the DNA samples) and whether it might be member of extended family or an intruder.  The Judge found that despite some conflicting expert evidence about causation of the death  (the medical research is that accidental strangulation happens rarely and to much much younger children) he was not able to make a finding that the malign explanation outweighed each of the possible benign explanations. Threshold was not met, the other five children went home.

The Court of Appeal concluded that

 

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.
  2. In my judgment the judge had failed to look at the whole picture. Not only did he fail to marry up the fact that S sustained two sets of injuries (one of which was fatal) but the judge, faced with the incontrovertible evidence in relation to the genital injuries, carried out no analysis of the available evidence in order to see whether an accident (for example) was a likely cause. Whilst in other circumstances I might have identified, or highlighted by way of example, certain evidence which I believe merited consideration by the judge, given my view that the appeal must be allowed and the matter remitted for rehearing, it would not be appropriate for me to comment further.
  3. Only if, having carried out such a comprehensive review of the evidence, a judge remains unable to make findings of fact as to causation, can he or she be thrown onto the burden of proof as the determinative element.
  4. In my judgment, in this most difficult of cases and in the most trying of circumstances, the judge failed to carry out such an analysis before relying on the burden of proof. This, when coupled with the erroneous conclusions of the judge in respect of the genital injuries and his failure to give those injuries any weight when considering whether S died as a consequence of an inflicted injury, must, in my judgment, lead to the appeal being allowed and the order set aside.
  5. I have considered with a deal of anxiety whether the case should be remitted given the lapse of time and that the family are reunited. I have however come to the unequivocal conclusion that it must. If S was killed other than by accident or suicide, it happened in that household and no one has any idea how or in what circumstances it came about. This is not a case, tragic and serious though that would be, where a child may have been shaken in an understandable momentary loss of self-control by an exhausted parent. This was a 10 year old child, and if it was the case that her death was caused by some unknown person strangling her with a ligature, the risk and child protection issues in respect of her surviving sister and brothers cannot be over stated. Traumatic though a fresh trial would be, it cannot be viewed as other than a proportionate outcome if, as they say is their intention, the local authority pursues the case.

 

That’s obviously a dreadful state of affairs either way.  Either something awful and malicious happened to this ten year old, in which case children were wrongly returned to the care of the parents  OR it didn’t, and having secured the return of their five surviving children having been under awful suspicion the parents have to go through it all again.  That’s unbearable however it turns out.

Making Special Guardianship Order before child has lived with prospective carers

This Court of Appeal decision raises a number of interesting and important issues.

(It doesn’t have anything amusing in it or any 80s references, but you can’t have it all.  If you want, you can momentarily imagine that this is some litigation involving Barry Chuckle and Jimmy Krankie having a dispute as to who gets custody of a tiny hedgehog in a hat and that the key pieces of evidence involve (i) Jean Claude Van Damme doing the splits in the witness box (ii) how many ferrets Fred Dineage can pop down his trousers and (iii) the enduring mystery of exactly how much smack Zammo Maguire hoped to obtain by stealing and pawning Roland Browning’s alarm clock, thus making Roland late for an exam.  It  has none of this.  I remain on the lookout for such a case)

 

P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1407.html

 

Essentially, the Court at first instance, was invited by the LA and the Guardian to make Special Guardianship Orders to grandparents for two children – S aged 2 and P aged 5. The parents were seeking the return of the children to their care – it had been a FDAC (Family Drug and Alcohol Court) case and the parents had withdrawn from that process – the judgment does not deal much with the parents case, as it was not the subject of the appeal.

 

[The parents had withdrawn from the Court process, thus at final hearing it was only the Local Authority and the Guardian playing an active part, both of whom supported the making of SGOs]

 

The Court declined to make Special Guardianship Orders, in part relying on a letter circulated by Keehan J to Judges on the Midlands Circuit to the effect that

“a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.”

 

The Court instead made a full Care Order – in effect deciding that the Local Authority, in consultation with the grandparents, should decide the point at which the case should come back before the Court with an application for a Special Guardianship Order. That also, in effect, envisaged the Care Order being a short-term order, rather than the permanent or long-term order that it is commonly viewed as.

 

The Court of Appeal judgment deals with a number of issues :-

 

  1. The need for solid evidence-based research about whether SGOs being made before a trial placement are a beneficial or adverse approach
  2. The status of the guidance given by Keehan J – and the representations made to the effect that it was being followed by the Courts in the Midlands circuit as though it were binding upon them
  3. What role prospective Special Guardians should play in the Court process
  4. What approach the Court should take, where potential suitable carers come forward late in the process.

 

All of this is useful.

 

 

 

  1. There are three strands to the errors that all represented parties before this court identify in the family court’s decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S’s father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.

 

 

 

  1. The propositions about which there is a large measure of agreement are as follows:

 

 

 

 

  1. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;

 

  1. b. The judge’s characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;

 

  1. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;

 

  1. The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.

 

  1. It is helpful to trace the judge’s reasoning by setting out how he came to his conclusion in his judgment. The following extracts are sufficient:

 

 

 

 

 

“1….It is not a case in which I must consider rival realistic options in terms of the children’s future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children’s respective paternal grandparents……

 

 

7.…the local authority and the Guardian contend that the children’s placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….

 

 

  1. In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are “satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”…….

 

 

  1. Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.

 

 

  1. There is also a power for a court to make a special guardianship order of the court’s own motion. That power is found at section 14A(6)(b).

 

 

  1. ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.

 

 

  1. Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression ‘in due course’ I mean ‘when the new placements are regarded as settled and working well for the children’. In this case that might perhaps be in about a year from now…….

 

 

  1. ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……

 

 

  1. My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit’s Local Family Justice Boards, was that “a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.” Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……

 

 

  1. All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents’ reaction will be to the children’s move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……

 

 

  1. 30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children’s lives – then the grandparents would have been parties, represented, present and witnesses……

 

 

31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.

 

 

  1. I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.

 

 

  1. A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.

 

 

  1. ……There would remain untested placements.

 

 

  1. ……the Guardian…….emphasised that “there was enough of a relationship that it is not an impediment to a special guardianship order…….”

 

 

The Court of Appeal considered this carefully

 

 

 

16.It is evident that the judge recognised that the only realistic placement options that he had were with the paternal grandparents. His concern was the viability of those placements: not because they were unassessed but because they were untested in the specific context of the possible interference with them by the children’s mother and the father of S. It was in that context that on the merits the judge wanted to be assured that the control and parental responsibility which vests in special guardians would be sufficient to manage the relationship with the parents. The alternative was control and parental responsibility being vested in the local authority through care orders. The problem to be solved was whether the relationships and capabilities of the grandparents were strong enough or needed to be supported and tested before SGOs were made.

 

 

 

  1. The solution to the problem was in the choice of order: SGO, care order or interim care order and an adjournment. The route to the solution lay in an evaluation of the evidence including oral evidence from professional witnesses, the parents and the proposed carers i.e. the paternal grandparents. It is clear from the judgment and from a transcript of the judge’s discussions with the advocates during the hearing that the judge had the problem and the solutions in mind. What was missing was a route to the preferred solution. Having identified the problem and the range of solutions the judge did not go on to evaluate that evidence. That necessarily meant that the propositions advanced in the discussion and the conclusions reached in the judgment take the form of assumptions that were not reasoned and which are now challenged.

 

 

 

 

 

 

  1. As I remarked at [16] and [17] it was the absence of any testing of the assumptions raised in discussion which created the problem with which this court now has to grapple. The judge was concerned about the relationship between the grandparents and each of the children in the context of continuing discord with the mother and the father of S. It is also right to note that it was not until the commencement of the appeal before this court that the special guardianship support plans were agreed between the local authority and the grandparents. The judge identified what were potentially adverse factors to balance against the positive factors in the special guardianship assessments which might lead to the conclusion that a trial placement of the children was required before vesting parental responsibility and control in the grandparents. That deserved more than a cursory analysis not least because the local authority and the children’s guardian had come to a clear and agreed contrary opinion on the basis of rigorous assessment material that apparently demonstrated that the positives outweighed the negatives.

 

 

 

  1. In order to test the assumptions the judge had described in his discussion with the advocates, he could have heard evidence about them and from that drawn conclusions. The judge records in his judgment that he heard some oral evidence but it is plain from his judgment that such evidence as there was either did not touch on the issues that he was raising or was unhelpful. That may be unsurprising given that the local authority and the children’s guardian disagreed with the judge and were agreed among themselves and also that no advocate was pursuing the issues the judge wanted to pursue. In that circumstance, as inquisitorial tribunals know, there must be an enhanced caution in a judge not to ‘simply’ rely on his or her own pre-conceptions or opinions and to ensure that as provisional conclusions are formed in judgment they are adequately tested so that they are soundly based on evidential conclusions.

 

 

 

  1. It would also have been legitimate, if properly reasoned, for the judge to conclude that he needed more evidence with the consequence that the time for the proceedings might need to have been extended. In order to come to either conclusion the judge needed to identify the risk that he sought to protect the children against and reason the options that were open to him on the evidence. He ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and by hearing evidence from the paternal grandparents. He would have been assisted by evidence from the mother and the father of S but, as has sadly been the case more than once in these proceedings, they had absented themselves and the judge was left with a history from which only inferences could be drawn. Had the judge reasoned his concerns on the evidence he would have had a proper basis for conducting an evaluation of the benefits and detriments of each order that was available to him.

 

 

 

  1. In that context, it is not surprising that the judge’s evaluation of the merits of each option and the available orders was incomplete. The judge agreed with the parties that a child arrangements order was not in the interests of either child and he was right to do so on the merits. No-one pursues that option before this court. That left SGOs, full care orders and interim care orders with an adjournment.

 

 

 

  1. I agree with the paternal grandparents of S that if and in so far as the judge needed more time to ensure that the relationship of the grandparents with the child and the parents was such that it was in the interests of each child to make an SGO, that could, if reasoned, have been an appropriate basis upon which to adjourn the proceedings

 

 

 

Is, Was and Ever Will Be

 

 

This is a Court of Appeal decision in relation to significant harm in care proceedings, where the harm was said to be emotional harm. And this is always a hot-button topic.

 

Re S & H-S Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1282.html

 

It also deals with the grammatical weirdness that is in the Children Act at section 31, which we all tend to forget to an extent. The Act never talks about whether the child  ‘has suffered’ significant harm, although that’s the language that we all use.  Instead it says “Is suffering” and the law has subsequently developed to say that you are looking at the past, to when protective measures were taken as the relevant date.   (That was a solution derived because care proceedings were being issued where a child had suffered significant harm and then gone into foster care or been placed with a relative – so on the day of issue, it would be inaccurate to say that the child ‘is suffering’ significant harm. So we routinely use the present tense of the Act to talk about the past tense of the relevant date)

 

In these proceedings, they were initiated on the basis of allegations about the children being physically harmed by father, and the LA accepted freely that at the time the proceedings started, they had no intention of issuing proceedings in relation to mother’s care.  The allegations about father fell away – the Court found that he had physically chastised them, but left no marks, and that they had not suffered significant harm as a result of his chastisement and it was not over-chastisement.

However, within the proceedings, the assessments that took place highlighted emotional harm, and in particular the children’s poor attachment to their mother.  The Court found that the children had suffered emotional harm.

The appeal was brought on the following points

  1. The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:
    1. a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings.

b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.

c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.

 

So you can see that timing is important. At the time proceedings were issued, one could not now say that the children ‘is suffering significant harm’ (I know, the tenses make me feel queasy too. I wish the Act just said ‘has suffered’ but it doesn’t.)  Any harm actually occurred within the proceedings. So the first limb isn’t met, and the LA would have to rely on the second limb, that there’s a likelihood of harm in the future.

 

The other bit I’m interested in is

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

 

We hear a lot about attachment in care proceedings, and an awful lot of what we hear is misusing terminology and confusing quality of relationship or emotional closeness with attachment, which is not something you can assess by reading some contact notes or watching mum play with a toddler.  We also hear a lot about  attachment problems without ever giving the context of how prevalent poor attachment is in the general population. Trust me, I’m not saying that flawed attachment has no impact on a child’s childhood and later life (seriously, trust me, I’m well aware of how many of my own problems are due to exactly this issue), but one needs to be careful if pathologising something which is not that unusual.  Remember, the wording of the Act says that the harm has to be attributable to the parent not providing care which it would be reasonable for a parent to provide – if a third of parents in the general population have difficult attachment styles, whilst that may be harming the child, is the parent culpable and behaving unreasonably?

 

The Court of Appeal said this :-

 

  1. Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:
      1. i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.

ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.

iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.

iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.

v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.

  1. The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.
  2. Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:
    1. a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.

b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.

c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.

d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.

e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.

f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.

g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.

The Court of Appeal were critical of the Judge’s failings in the judgment, particularly the conflation of emotional harm and significant harm, and linking the comments on harm to the wording of the Act.

However

  1. As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.
  2. The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.
  3. It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.
  4. This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.

 

 

  1. In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.
  2. For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.

Note that even though the Court of Appeal are telling the Judge off for not using ‘is suffering’ as the test, they themselves slip readily into the language ‘was suffering’.  It is almost impossible not to do it.

 

(I was somewhat surprised that this appeal didn’t succeed – on my reading there were enough failings in the judgment to overturn it, but the Court of Appeal felt that there was sufficient cogency to the judgment in full that they could apply a little bit of Polyfilla to the cracks, rather than declaring that it was so flawed it had to be reheard. I can see that they considered that it was slightly loose use of language rather than a failure to identify whether the children met the s31 test)

 

The Court of Appeal gave a coda of lessons to be learned (whilst not noting that they’d not followed their own lessons in the very same judgment, cough)

 

Lessons for the Future?

  1. Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.
  2. In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
  3. When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
  4. A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
  5. Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
  6. At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
  7. The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.

 

 

“I completely forgot”

 

This is a successful appeal (indeed fairly unusually it was an appeal that by the time the Court of Appeal came to look at it, all four parties were in agreement should be granted) about a decision in the High Court to make a finding of sexual abuse against a child, T, who had just turned 16 when the High Court considered the case. T had been the subject of a Care Order and Placement Order when she was six, then placed for adoption.

 

(Bit nervous about this one, as I know that 75% of the silks in the case read the blog… and I have a mental crush on all three of them. And because I also have a lot of respect for the High Court Judge who gets monstered in the appeal judgment)

 

The adoption got into difficulties, and T went into respite care for a short time in May 2014. She went back to her adopted family at the end of May and that carried on until the end of August 2014, at which point the adopters agreed a section 20 arrangement – the social work team wishing to remove T as a result of her allegation to a CAMHS worker. The allegation was that during that period from May 2014-August 2014 when she was with her adopted family, the adoptive father had sexually assaulted her, including one allegation of rape.

P (A Child), Re [2018] EWCA Civ 720 (11 April 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/720.html

 

The section 20 arrangement continued. It was obvious to all that T would not be going back to the adopters. (Listen, I know that at this point, the adopters are legally her parents and I don’t seek to diminish that, but I think to understand the case it is easier to say adoptive parents and birth parents). The s20 continued until the Local Authority issued proceedings in April 2016. By that time, T had given an ABE interview, made further allegations and declined a second ABE interview and made partial retractions of the allegations. Her behaviour had deteriorated and by the time of the Court case, had been detained under the Mental Health Act 1983. (which is rare for a child)

 

The first question the case raises then, is why this child was under a section 20 arrangement for so long, rather than proceedings having been issued?   I’ll preface this by saying that obviously a case involving an allegation of rape against a child – particularly rape where the alleged perpetrator is an adopter and someone still approved to adopt children, ought to have been placed before the Court. Very quickly after those allegations were made – perhaps allowing a short period of time for the investigation to take place.

(I can’t lay my hands on the authority at the moment, and Hershman McFarlane is being uncooperative, but I’m fairly sure that there is a mid 1990s authority that says where the LA believe the child has been the subject of serious sexual or physical abuse, they ought to place it before the Court by issuing proceedings… I wish I could find the authority. Perhaps one of my illustrious silk readers can illuminate us.  The Act itself just says that the LA can’t issue proceedings unless they believe the threshold criteria to be met – so it says that there are situations where they shouldn’t, it is silent about the circumstances in which they should. The LA don’t have to issue proceedings on every child where the threshold is met. )

 

So what follows is not a justification or excuse for the delay, but an attempt to consider the context.

 

Here are some possible reasons why proceedings were not issued :-

 

  1. It just never got considered (prior to April 2016), and it wasn’t a conscious decision not to, so much as just nobody thinking about it.
  2. The adoptive parents were not asking for T back, T didn’t want to go back, T was in what was considered to be a safe place, and so there was a thought process that nothing was to be gained by going to Court. T wasn’t going to be adopted by anyone else and a Care Order would add nothing to the situation on the ground. Perhaps people even actively thought about the ‘no order principle’ and considered that it wasn’t possible to make out a case that the making of a Care Order (as needed by article 8) would be ‘proportionate and necessary’
  3. This was happening BEFORE the s20 drift was coming to judicial attention and prominence as an issue, and when those s20 cases did emerge, that’s when the LA did take action.
  4. Perhaps everyone was caught up in the day to day management of T and what she needed in terms of placement and stability, and overlooked the bigger picture.
  5. Let’s be quite honest – there’s the potential that the parents in this case were treated differently (because they were adopters) to the way they would have been treated as birth parents.

 

However, ALL of those issues are hard to excuse the fact that T’s sister, X, remained with the adoptive parents. So the LA had an allegation of rape by T, known about for over 18 months, and knowing that a younger sister was still living with the adopters.

 

(So either they didn’t believe T’s allegations OR they thought for some reason that X was safe, but the point is they couldn’t know for sure either way)

Anyway, the Court of Appeal were critical of the delay

 

12.Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T’s allegations and the father’s wholesale denial. Irrespective of the fact that T’s mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined

 

The next issue in the case is that the adoptive parents agreed that the threshold was met for T, because she was beyond parental control. The LA, however, sought a finding about the sexual abuse allegations (five findings in all). That obviously makes sense given that X wasn’t beyond parental control, and there was a need to establish what happened to T, to decide if X was at risk of sexual harm. That makes sense to me. (I can’t, so far, make sense of why it appears that the proceedings were about T, and not T AND X – and the Court of Appeal say that

 

 

50.So far as X is concerned, although she has been the subject of arrangements made under the Pre-commencement Procedure operated within the Public Law Outline, no proceedings have ever been issued with respect to her since the making of the adoption order )

 

The High Court heard from 16 witnesses at the finding of fact hearing. Things went wrong when Parker J came into Court to deliver her judgment

 

 

 

 

The judgment

17.The oral evidence had been concluded on 18 November 2016 and closing submissions were delivered on 18 and 25 November. The case was then adjourned to 8 December 2016 for the delivery of judgment. On that occasion, however, the Judge explained that she had been occupied with other cases and had been unable to prepare a written judgment. She had, however, reached “some conclusions” and, with the parties’ agreement, she stated what those were in the course of a short judgment which runs to some 6 pages in the agreed note that has been prepared by the parties. In short terms, the Judge rehearsed a number of the significant points in the case, for example, T’s mental health, the recording of her allegations and the ABE interview process, any evidence of inconsistency and T’s overall reliability, and an assessment of the father’s credibility before announcing her conclusion in the following terms:

 

 

 

“I have come to the conclusion therefore, and I am sorry to have to do so as I thought the mother and the father were the most likeable people, but during the course of 2014, there was an attempt at least, it may have been more, of sexual congress between the father and T.”

18.The case was then adjourned to 30 January 2017 for the delivery of a full judgment. A note of what had been said in court on 8 December was agreed between the parties and submitted to the Judge. On 30 January the Judge again indicated that, due to pressure on her time as a result of other cases, she had not been able to prepare a full judgment. Instead the Judge gave a lengthy oral judgment, seemingly based on prepared notes.

 

 

19.On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.

 

 

20.The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 and subsequently endorsed in the family law context by this court on many occasions.

 

 

All of this was compounded then, because despite knowing that the case was going to be appealed, following the judgment in January 2017, the transcript of the judgment wasn’t made available. The transcribers sent it to the Judge on 18th March 2017 – the Judge sent an approved copy back to them SIX MONTHS later, September 2017, but that approved copy never got sent to the parties or the Court of Appeal.

 

The Court of Appeal (at the time of hearing the appeal) were therefore working from an agreed note of the judgment rather than the transcript

The Judge’s decision

26.Early in the judgment of 30 January the Judge records the decision that she had already announced at the December hearing in the following terms (paragraph 17):

 

 

 

“I have decided that she has been sexually interfered with by her father and that she has been caused significant emotional harm by reason of her mother’s disbelief in telling her so, although my criticism of the mother was highly muted in the circumstances for reasons I will come back to.”

27.After a summary of the evidence the Judge stated (paragraph 58):

 

 

 

“It is against that background that I need to assess the threshold.”

 

She then set out the content of the local authority fact-finding Schedule introducing it with the following words:

 

“I am asked to make findings in terms of:”

 

Unfortunately, the judgment does not record the Judge’s decision on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”. Whether that statement amounts to a finding is, however, not entirely clear as it simply appears as a statement in the 8th paragraph of a 40 paragraph section in which the Judge reviews a wide range of evidence.

28.The basis of the appeal is that the Judge’s judgment fails sufficiently to identify what (the local authority would submit, if any) findings of fact the Judge made.

 

 

29.Before leaving the 30 January judgment, it is necessary to point to 2 or 3 other subsidiary matters that are relied upon by the appellants as indicating that the judgment, substantial though it may be in size, is inchoate:

 

 

 

  1. a) Prior to listing the witnesses who gave oral evidence the Judge states “I think I heard the following witnesses”. The list of 13 witnesses is said to omit 3 other individuals who also gave oral evidence.

 

  1. b) In the closing stages of the judgment the Judge makes one additional point which is introduced by the phrase “one thing I forgot to say” and a second which is introduced by “also one thing I have not so far mentioned, and I should have done”.

 

  1. c) At the very end of the judgment, and after the Judge has gone on to deal with procedural matters unrelated to the findings of fact there appears a four paragraph section dealing with case law related to the court’s approach to ABE interviews where it is asserted there has been a breach of the ABE guidelines. That section is preceded by the phrase “I completely forgot”.

 

There are of course, all sorts of different styles and approaches one can adopt to delivering a judgment and the Court of Appeal are not trying to be prescriptive or to fetter a Judge’s discretion of   stylistic delivery. Having said all that, if the immediate comparator that comes to mind is Columbo talking to Roddy McDowell, that’s not a good thing.

 

Have I ever been happier to be able to get a particular picture into the blog? Maybe Kite-Man, but I am VERY pleased about this one

 

The appeal itself

30.Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.

 

 

31.The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.

 

 

32.In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.

 

 

33.The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.

 

 

34.That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

 

 

35.Against that background it is helpful to quote directly from the skeleton argument prepared by Miss Markham and Miss Grieve on behalf of the local authority:

 

 

 

“5 At the heart of the appeal are findings that (father) behaved in a sexually inappropriate way towards his daughter T. The findings are set out in this way, as it is accepted by the respondent local authority that the judgment given by Mrs Justice Parker does not particularise the findings made nor does it cross refer findings to the local authority Schedule of findings. As such the findings have not been accurately recorded or set out.

 

….

 

“14 The local authority does not oppose the appeal for reasons set out below.

 

15 However the local authority does not accept that all grounds as pleaded would be matters or arguments which the local authority would either not oppose or indeed agree, if taken in isolation. The focus in approaching this appeal has been to stand back and have regard to the fairness and integrity of the judgment and the process taken by the parties to try to clarify the judgment and in particular the findings made.

 

16 It is submitted that it must be right and fair that a party against whom findings are made should know the actual findings made and the reasons for them. It is submitted that reasons on reasons are not necessary, but clarity as to findings and a clear basis for them is a primary requirement of a Judge.

 

17 It is significant that the learned Judge has resisted requests of her to clarify her judgment and that in particular she has not taken opportunities to set out the findings she has in fact made.

 

18 Dovetailing into that error is the argument that flows from that omission; absent clear findings it is impossible to see, understand and argue that the Judge formulated her findings on clear, understandable and right reasoning.

 

 

21 In this instant case it is submitted on behalf of the parents that the judge did not even set out the findings, not least allow them to see whether she fairly and with significant detail set out her reasoning for coming to the findings she then made. Further requests of the Judge were properly made and the learned Judge has neither responded to them nor clarified why she is not engaging in the requests of her

 

 

23 (Having listed the short specific findings made by the Judge) It is acknowledged that these matters are the most detail (the Judge) gives to her findings. Whilst it is asserted by the local authority that the learned Judge was able, within the ambit of her wide discretion to make findings, it was incumbent upon her to set out with clarity what those findings were and how she came to make them.

 

24 It will be apparent from the matters set out above that she failed in this task and that she failed to cross refer back to paragraph 59 (where the Judge listed the content of the local authority Schedule of findings) and set out what she had or had not found proved.”

36.The local authority identified two specific grounds relied upon on behalf of the father, one asserting that the Judge rejected the father’s case on the deficits on the ABE interview, against, it is said, the weight of the evidence, but provides no analysis for coming to that conclusion. Secondly the local authority accepts that there were many examples of inconsistency within the accounts that T had given. In both respects the local authority expressly acknowledged that the Judge failed to engage with these two important aspects of the case and failed to set out her findings in respect of each.

 

 

37.The local authority, rightly, argue that a Judge has a wide discretion to accept or reject evidence in a case such as this and that the Judge does not have to refer expressly to each and every detail of the evidence in the course of their judgment. The local authority’s skeleton argument, however, accepts “that a fair and balanced assessment of the cases advanced and evidence for and against said cases is necessary, proportionate and fair and has not occurred sufficiently in this complex case.”

 

 

38.Miss Kate Branigan QC, leading Miss Lianne Murphy, both of whom appeared below for T, acting on the instructions of the children’s guardian adopt a similar stance to that taken by the local authority. In their skeleton argument (paragraph 10) they state:

 

 

 

“Albeit T maintains that the allegations made against her father are true, the children’s guardian has had to conclude that the judgment as given by the court on 30 January 2017 is not sustainable on appeal and that inevitably the appeals on behalf of both appellants must succeed.”

 

Later (paragraph 14) it is said:

 

“Regrettably we accept that it is not possible from the judgment to identify what findings the court has made. At paragraph 59 of the judgment note, the court sets out the detail of the findings it is invited to make, but at no stage thereafter does the learned Judge indicate which of the findings she has found established to the requisite standard nor does she attempt to link what she is saying about the evidence to the specific findings sought….On this basis alone the judgment is arguably fatally flawed.”

 

And at paragraph 15:

 

“We further recognise in certain key respects the court has failed to engage with the totality of the evidence to the extent that any findings the court has purported to make are unsustainable in any event. In particular, we accept the arguments advanced on behalf of the appellant father… that the court failed to undertake a sufficiently detailed analysis of the context in which T’s allegations came to be made, failed to engage with the professional evidence which called into question the reliability of those allegations and did not weigh appropriately in the balance the inconsistencies which were clearly laid out on the evidence in relation to T’s accounts.”

39.In the light of the parties’ positions, the oral hearing for this appeal was short. All were agreed that the appeal must be allowed with the result that, at the end of a process which started with allegations made in August 2014, and in included a substantial trial before a High Court Judge, any findings of fact made by the Judge and recorded in her oral determinations made in December 2016 and on 30 January 2017 must be set aside and must be disregarded in any future dealings with this family.

 

 

40.For our part, my Lords and I, rather than simply endorsing the agreed position of the parties, had, reluctantly but very clearly formed the same view having read the note of the 30 January judgment and having regard to the subsequent failure by the court to engage with the legitimate process of clarification that the Judge had, herself, set in train

           41.Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.      

 

    

The Court of Appeal were asked to give some clarifying guidance in relation to the issue of what happens where the parties ask (as they must) for the Judge to clarify flaws in the judgment and after a period of time the Judge has not done so. For a start, when does the clock for the appeal start to tick? After judgment, or after the request for clarification, or after receipt of such clarification?

 

 

 

42.Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.

 

 

43.The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.

 

 

44.The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.

 

 

45.Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.

 

 

Whilst the Court of Appeal say that because of the administrative nightmare that is obtaining an approved transcript, they will accept an agreed note from the lawyers I wonder how on earth that is going to work with cases involving only litigants in person (eg about 90% of private law proceedings)

Cross-examining alleged victim without a lawyer

 

Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?

 

Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?

 

 

Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”

 

(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)

 

Re J (Children) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/115.html

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”

 

 

What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father

 

  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’

 

At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.

 

  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.

 

The Court of Appeal recognised the vexed issues that this case threw up.

 

  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.

 

 

In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not

 

  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.

 

The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.

 

However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.

He Pooles all his resources

This case is a Court of Appeal decision on something that I’ve never even contemplated before.

If a family are getting bullied or harassed by other local residents, and the Housing authority won’t rehouse the family – can the family SUE the local authority for failing to remove their children into care? (And by inference therefore, DO Local Authorities HAVE to remove children who are being bullied on their local estates if the Housing Department won’t evict the bullies or rehouse the family)

It’s a question that immediately made me go “what the eff? Of course not. And why on earth is a parent trying to sue a local authority for NOT taking their kids off them?”

They were though, see

8.Causation is pleaded in the following terms:

“6.3 On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”

(Bearing in mind that the parents have the power to accommodate their child under s20 by simply asking, this really is the parents suing the local authority for failing to remove their children against their will….)

But it turns out that the answer given to the question first time around was, yes absolutely. And the answer given was in the High Court, which meant it was binding precedent for CJs and below (which fortunately we all missed because Housing lawyers, tort lawyers and care lawyers don’t talk to each other)

Hence there being an appeal. And if the answer stays yes, brace yourselves for a HUGE spike in care proceedings – which is JUST what we all want at this moment, amiright? #sorrytobreakyoursarcasmfilters

CN and another v Poole Borough Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/2185.html

Before we start, the title is obviously a play on Poole, and is drawn from my favourite ever Flaming Lips song, which means that it is close to being one of my favourite songs period, because the Flaming Lips are just great.

The song is about Wayne Coyne’s brother, who got high on drugs and decided to go to a convenience store, only when he got there he couldn’t really walk or talk and freaked out the people at the store who called the cops. That’s too simple for a Flaming Lips song, so Wayne adds in that his brother develops a superpower to summon up a host of waterbugs to attack authority figures who are hassling him. And despite the weirdness of the subject matter, it ends up being a song that feels poignant and delicate and beautiful. Enjoy.

But obviously

It was a pretty rotten situation for this family. Their child had severe physical and learning difficulties. There was another family on the estate, known for anti-social behaviour, who as the Court of Appeal say ‘predictably’ started to bully and behave dreadfully towards CN. CN attempted suicide.

You are already wondering why the family are suing the Children’s department of the LA (what we all still call Social Services) rather than Housing – since obviously what they wanted was to be rehoused.

That’s because there’s a firm and clear case called Mitchell, in which the House of Lords held that a person can’t sue the Housing department for this sort of thing.

58.Mr Mitchell was a secure tenant of the local authority, as was a neighbour named Drummond. After a long course of aggression and threats from Drummond, of which the council were fully aware, Drummond killed Mitchell. His widow sued, claiming that the council owed her husband a duty of care and should have intervened, at least by warning about a forthcoming meeting likely further to agitate Drummond. The council’s case was that they owed no duty of care to protect Mr Mitchell from criminal acts by Drummond.

So suing the Housing Department was out, and the lawyers acting for the family instead tried to construct a case on failure of the social services department to safeguard a child in their area from harm arising from the behaviour of people outside the family.

They were relying on a Court of Appeal authority called D v East Berkshire, which removed the previous blanket immunity of local authority social services departments against negligence claims (which had previously been a matter of public policy).

The Court of Appeal were somewhat critical of the failure of the legal representatives of the family to fail to properly grasp the nature of care proceedings. (They obviously weren’t family lawyers, and their understanding of care proceedings is probably on a par with my understanding of tort – I know the broad gist, but not the nuance)


108.Irwin LJ set out at paragraphs 6 – 8 above, the way in which this claim was pleaded namely that the children should have been ‘removed from the care of their mother’. Causation was pleaded as follows:

“6.3 …By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”
109.I readily acknowledge that lawyers drafting pleadings in a case of this type may not necessarily have specific expertise in relation to care proceedings. In my view however, it is unacceptable that there appears to have been no understanding of, or reference to, the statutory basis upon which the draconian order sought, (resulting in the unilateral removal of these children from their mother) could have taken place.

110.The pleadings baldly assert that “on application to the Court the Defendant (ie the local authority) would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant”. Such a statement fails to acknowledge that where, as here, a mother does not consent to the removal of her children from her care under an interim care order, the local authority must satisfy the court (pursuant to section 38(2) Children Act 1989) that there are reasonable grounds for believing that “circumstances with respect to the child are as mentioned in section 31(2)”.

111.Section 31(2) provides the ‘threshold criteria’ for state intervention in the care of a child:

“(2) A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or likely to suffer, significant harm; and

(b) that harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.”
112.On the facts of the case put before the court, it seems highly unlikely that it could be shown that there were reasonable grounds to conclude that the threshold criteria could be satisfied. Further, numerous Court of Appeal decisions have made it clear that satisfaction of the threshold criteria should not be equated with satisfaction of the case for the removal of a child from its parent. A care plan for the immediate removal of a child from its parent should only be approved by the court if the child’s safety demands immediate separation; see for example Re G (Interim Care Order) [2011] 2 FLR 955, CA. I note, for completeness, that there is no such order as a ‘respite care order,’ let alone as some sort of half way house to an interim care order.

113.In my judgment, the pleadings should have particularised the broad basis upon which it was said the threshold criteria was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable.

Davis LJ went further, and also threw in the word ‘legerdemain’ which is a particular favourite of mine.

116.In any event, I found the formulated claim, by reference to a duty of care asserted to arise from the availability of asserted remedies under the provisions of the Children Act 1989, most disconcerting. The true complaint in reality was about the failure of the housing authorities to re-house the entire family in the light of the activities of the neighbouring family. (Previous proceedings commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and PHP had, I note, not been pursued and were struck out in 2013.) That, as is now accepted, gave rise to no viable cause of action against the relevant housing authorities. To seek then to re-cast the claim for damages against the local authority by reference to an alleged duty to seek and obtain a care order under the Children Act 1989 seems to me little more than legalistic legerdemain, designed to overcome the insuperable obstacles to formulating a viable claim in attacking the housing authorities in the exercise, (or, rather, non-exercise) of their housing functions. The courts should not be prepared to entertain such a step.

117.It was never said that the mother was an unfit mother. She loved and cared for her (vulnerable) children. They loved and needed her. Nothing she did or did not do caused them any harm: it was the harassment of the neighbours which did. True she failed, in spite of all her efforts, to achieve the cessation of that harassment or relocation of her family. But that was not her fault. On the contrary, it was the various agencies which, rightly or wrongly, have been blamed. But why or how could seeking a care order with regard to the children be justified in such circumstances?

118.In the present case, it seems to me that seeking a care order from the Family Court, which potentially would split the family, would not simply have been utterly heartless: it seems to me that such a step would have been utterly wrong. In the circumstances of this case, there was no justification for potentially separating, without the mother’s consent, mother from children, children from mother by use of care proceedings. To countenance care proceedings in the Family Court in order to overcome (or provide a subsequent remedy for) the problems caused by the neighbours on the estate would be, I would have thought, tantamount to an abuse of the process of that court

The Court of Appeal held that there was nothing within this case, sad as it was, that met the very specific and narrow set of circumstances in which Person or Body A (the local authority) was legally responsible for the actions of a third party (the anti-social family living on the state). And thus the application was struck out.

Everyone can breathe now, we haven’t just had an entirely new basis for issuing care proceedings dumped on us. Thank goodness.

The Court of Appeal also suggest very strongly that D v East Berkshire is no longer good law and should not be followed, but as I don’t practice in tort, I’m not going to make the mistake of trying to tell anyone what significance that should have (or whether it just means that it isn’t authority for making a local authority responsible for the actions of a third party outside its control)