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

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

 

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

 

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

 

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

 

 

Re  I (Children : Child Assessment Order) 2020

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

 

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

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

 

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

 

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

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

 

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

 

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

 

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

43 Child assessment orders.

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

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

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

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

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

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

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

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

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

(5) A child assessment order shall—

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the child’s parents;

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

(c) any other person caring for the child;

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

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

(f) the child,

before the hearing of the application.

 

 

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

 

The judge’s conclusion on jurisdiction

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

 

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

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

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

 

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

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

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

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

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

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

 

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

 

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

 

 

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

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

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

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

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

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

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

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

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

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

 

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

Their conclusions

 

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

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

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

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

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

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

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

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

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

 

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

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

 

Notification of fathers or family in voluntary adoption cases

 

 

 

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

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

 

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

 

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

 

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

 

 

 

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

 

 

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

 

 

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

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

 

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

 

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

 

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

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

 

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

 

Urgency and thoroughness of procedure

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

 

 

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

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

 

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

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

◦The decision to place the child for adoption.

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

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

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

◦The implications of adoption for the child

◦The legal process required to achieve adoption

◦Other possible options for the care of the child

◦The adoption counselling service and how to access it

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

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

 

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

 

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

 

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

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

 

 

 

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

 

 

 

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

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

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

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

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

 

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

 

 

 

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

 

 

 

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

 

 

 

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

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

 

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

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

 

Re B-S for Secure Accommodation BIG BIG BIG


 

 

It could easily be said that a big over-arching Court of Appeal analysis of Secure Accommodation has been long overdue, but it is here now. And just like B-S did (or did, then didn’t, but did but didn’t, depending on which subsequent Govt press release/Court of Appeal authority you read and when), this changes everything.

I’m sorry, this is LONG. The new test on secure is in large font or  para 98 of the decision http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

If you represent LA’s who apply for secure orders, or represent parents whose children may be placed in secure, or guardians / children who are the subjects of such applications you NEED to READ this. The landscape changes completely.  There are brand new areas of proper challenge to the making of such orders, and they will be much more wide-ranging hearings than previously.

It is long, but read it.

To recap a bit for those who aren’t as invested as I am in the intricacies of Secure Accommodation, we’ve had three problems in this field and the law on this field.

 

  1. Is the making of a Secure Accommodation Order mandatory if the section 25 test is made out? The statute says so, but there are two different branches of authorities, one saying yes and one saying the other philosophy of the Act that the order must be better for the child than making no order still applies.
  2. To what extent is proportionality and necessity an issue? (Again, two different branches of authorities)
  3. Due to a massive shortage of spaces and beds, what are the circumstances in which it is okay to use inherent jurisdiction (magical sparkle powers TM) to make a non-approved secure unit look after a child and use the same sorts of powers as s25 offers?

And we can add now a fourth problem/ question that we didn’t know we had

 

4. Is secure binary? (i.e if the Court makes a secure accommodation order under s25, is it then up to the Unit to decide how to manage the child, or does the Court have a role in deciding what particular restrictions of liberty are authorised and which are not?)

 

The legal test for making a secure accommodation order is this:-

 

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

 

(ii)if he absconds, he is likely to suffer significant harm; or

 

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

And the statute goes on to say :-

 

(3)It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4)If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

 

So the Act says :- if the LA apply for a Secure Accommodation Order, the Courts job is to consider whether the factual basis for saying that the s25(1) criteria are made out and IF SO to MAKE the order (there isn’t a judicial discretion element there. That obviously troubles people post Human Rights Act, because welfare, proportionality and necessity have become the fundamental underpinning mechanisms of all Family Court decision-making since the HRA and the authorities that have arisen from it. Everyone thought in the late 90s that s25(4) was going to be declared incompatible with the HRA but it just didn’t happen. And instead we just saw some cases saying ‘it is manadatory if the s25(1) criteria is made out’ and some saying ‘I can take into account the child’s welfare and whether this is a proportionate way of managing the child’s welfare’

(An argument about proportionality is that the s25(1) criteria are in and of themselves a proportionality test – you can’t lock a child up unless that test (which gives the reasons why they would need to be locked up) is met. The counter argument to that is that whilst that means the Court have to lock up every young person who meets the test IF they are asked to make a s25 order, the LA have children who meet the test but they decide not to lock up and manage the risk in other ways – and why is that decision resting solely with a Local Authority and not with a Judge? Why can’t a Judge decide that Child A properly belongs in the group of children who are at serious risk but can be managed without locking them up?)

Given that the decision ultimately is whether a young person is going to live in a home with locked doors and controlled access to their movements, it is very important to know which route we are taking – the strict statute, or the HRA-informed proportionality.

 

I’ll come onto the facts of the case and the decision later (assuming I keep up my enthusiasm), but I’m going to deal with these four questions first.

B (Secure Accommodation Order), Re (Rev 1) [2019] EWCA Civ 2025 (21 November 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

 

 

 

The Court of Appeal frame four questions (wording them differently to my four)

2.The appeal raises four important and overlapping questions on the interpretation of s.25.

 

 

 

(1) What is the meaning of “secure accommodation” in s.25?

 

(2) What are the relevant criteria for making a secure accommodation order under s.25?

 

(3) What part does the evaluation of welfare play in the court’s decision?

 

(4) When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the ECHR, to carry out an evaluation of proportionality?

 

 

The Court of Appeal decisions follow:-

 

What is ‘secure accommodation’?

In my judgment, “secure accommodation” is accommodation designed for, or having as its primary purpose, the restriction of liberty. As Wall J acknowledged, however, premises which are not designed as secure accommodation may become secure accommodation because of the use to which they are put in the particular circumstances of the individual case.

 

 

60.Unlike Re D, the present appeal does require the court to interpret the section with reference to a “real factual situation”. As Lady Black recognised, however, training the spotlight on the accommodation does not provide a complete answer to the question. She acknowledged that, while some types of secure accommodation will be readily recognisable as such, others will not. In some cases, it will not be easy to say whether the accommodation is or is not “secure”.

 

(oh good)

 

Is the child’s welfare paramount? (short answer NO)

 

68.The decision in Re M clearly establishes that the paramountcy principle in s.1 of the Children Act does not apply to applications under s.25. It has been followed by all courts hearing applications under the section and is binding on this court. There is, however, less clarity as to the extent of the evaluation of welfare which the court is required to carry out. There is a small but perceptible difference between the view expressed by Butler Sloss LJ and that of Hoffmann LJ. Both agreed that the court must apply the same criteria as the local authority and that the relevant criteria include welfare. Butler-Sloss LJ considered that the distinction between a reviewing power and a general duty to consider welfare was “a matter of words” but that “the court has the specific duty to determine whether any relevant criteria are satisfied” and that, in performing that duty, welfare is “of great importance”. Hoffmann LJ, however, thought that function of the court under s 25 is “merely to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child”.

 

 

69.Some might consider this to be a distinction without a difference. It should be noted that the third judge in the constitution, Sir Tasker Watkins, agreed with both judgments. In my view, however, there is a difference of approach in the two judgments. It is therefore unsurprising that in subsequent cases, courts have sometimes struggled with the issue of how to deal with cases where they perceive that, whilst the conditions in s.25(1) are satisfied, the placement proposed by the local authority would be contrary to the child’s overall welfare.

 

[By the time you get to the bottom of this, you might well think that unless there’s a ‘protection of the public’ element to the case, the distinction between the child’s welfare ‘not being paramount’ and what is described below looking very much as though the child’s welfare is paramount is wafer-thin]

 

What role does welfare have in the decision?

72.In my judgment, the “displacement of the court’s welfare role” as required by the decision in Re M extends only to the displacement of the paramountcy principle. It does not require the court to abdicate responsibility for evaluating impact of the proposed placement on the child’s welfare. On the contrary, as Butler-Sloss LJ said, the child’s welfare is plainly of great importance in deciding whether or not an order should be made. The local authority and the court must each consider whether the proposed placement would safeguard and promote the child’s welfare. In some cases, the child’s welfare needs will be served by a period in secure accommodation, particularly if supported by a comprehensive therapeutic programme. In other cases, the child’s welfare will not be promoted by such a placement. However, just as s.22(6) allows the local authority to exercise its powers in a way that does not promote the child’s welfare if necessary to protect the public, there may be cases where the court concludes that the child’s welfare needs are outweighed by the need to protect the public from serious harm. Welfare is therefore not paramount but is plainly an important element in the court’s analysis. It is one of the relevant criteria.

 

 

73.This interpretation of s.25 is fortified by the Human Rights Act 1998, which came into force five years after Re M was decided in 1995

 

Proportionality – is it relevant ? (short answer, yes, the Court need to conduct an exercise before deciding whether or not to make a secure accommodation order)

 

 

 

 

88.In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

 

 

89.The ECHR, in particular Article 8, is part of the bedrock of the Children Act. As Baroness Hale observed in Re B [2013] UKSC 33, at paragraph 194:

 

 

 

“The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under Article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.”

 

In exercising their duties and powers under s.25, local authorities and courts must comply with the ECHR and, in particular, Articles 5 and 8. Since the principle of proportionality is integral to Convention rights, it is incumbent on local authorities and courts not to apply for, or grant, orders under s.25 where, to adopt the phrase used by Lord Reed in the Bank Mellat case, the impact of the rights infringement is disproportionate to the likely benefit.

 

The 2014 statutory guidance refutes the well-established principle that secure accommodation is a last resort

 

 

“40. Restricting liberty of a child is a serious step that can only be taken if it is the most appropriate way of meeting the child’s assessed needs. A decision to place a child in secure accommodation should never be made because no other placement is available, because of inadequacies of staffing in a child’s current placement, or because the child is simply being a nuisance. Secure accommodation should never be used as a form of punishment.

 

  1. This does not mean, though, that restriction of liberty should only be considered as a ‘last resort’. Restricting the liberty of a child could offer a positive option. A decision to apply for an order under s25 of the Act should be made on the basis that this represents the best option to meet the particular needs of the child. The placement of a child in a secure children’s home should, wherever practicable, arise as part of the local authority’s overall plan for the child’s welfare.

 

The Court of Appeal say that the statutory guidance is WRONG

 

91.In these circumstances, it seems to me that the passage in the latest edition Guidance (quoted at paragraph 23 above), which refutes the proposition that restriction of liberty should only be considered as a last resort, is inconsistent with principle. To deprive a child of liberty in circumstances which were not a last resort would surely be disproportionate.

 

We have for a long time (prior to the 2014 guidance) had a weird divergence where LA’s were told that they could not ASK for secure accommodation unless it was a last resort, but the Courts were told they had to make the order if the criteria were met and were not required to find that it was a last resort. The Courts now DO have to make such a finding (implicit in para 91 above that in finding that secure is a proportionate order to make, such decision would be flawed in circumstances where secure was not the last resort)

 

 

 

Evaluation of welfare – Court must carry out an evaluation of how secure meets the child’s welfare needs before making an order – the evaluation CAN include the need to protect the public

 

The assessment of proportionality which the court is obliged to carry out as a public authority will inevitably involve an evaluation of welfare. In my judgment, this analysis applies equally to applications under s.25. Accordingly, the interpretation of s.25 proposed by Hoffman LJ in Re M – that the function of the court is to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child – and the approach suggested by Charles J in S v Knowlsey – that the court should assess welfare issues under s.25 on the basis that the local authority is the decision maker – are, in my view, incompatible with the court’s duty under s.6 of the Human Rights Act. On an application under s.25, the court must carry out its own evaluation of whether the order would safeguard and promote the child’s welfare. The intensity of that evaluation will depend on the facts of each case. In most cases, it is unlikely to involve a wide-ranging inquiry. The question for the court is whether, in all the circumstances, including the need to protect the public, the proposed order would safeguard and promote the child’s welfare

 

 !!!!!!HERE COMES THE NEW S25 TEST !!!!!!

Relevant criteria revisited

98.Having analysed the roles played by welfare and proportionality in the decision-making process under s.25, I conclude that, in determining whether the “relevant criteria” under s.25(3) and (4) are satisfied, a court must ask the following questions.

 

 

 

(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

 

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

 

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

!!!! TEST ENDS!!!!

(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)

99.If the relevant criteria are satisfied, s.25(4) obliges the court to make an order under the section authorising the child to be kept in secure accommodation and specifying the maximum period for which he or she may be so kept. In its submissions to this court, the ALC was rightly anxious to preserve the use of what it called “imaginative arrangements” – the arrangements characterised by Hayden J in Re SS as “the creative alternative packages of support” – and was concerned they would be squeezed out by too wide a definition of “secure accommodation”. The recasting of the interpretation of the relevant criteria under s.25 suggested in this judgment preserves the flexible approach advocated by the ALC. If the court determining an application under s.25 is obliged to conduct an evaluation of welfare and an assessment of proportionality, and in doing so applies the principle that a secure accommodation order should always be a last resort, the court will be under an obligation to consider alternative arrangements

 

 

What is the Relevant Date?

This doesn’t come up very often (or didn’t). The Court of Appeal say  (para 100) that the relevant date for establishing whether the s25 criteria (bundling up now proportionality and welfare evaluation including alternative arrangements) is met is the date of the application.

That inevitably means that where the child is in Secure (and has been for a period of months rather than 72 hours) as a result of a previous order, the evaluation of whether the s25 criteria is met is on the date of the application – the history will come into play, but the current position is huge.

 

Inherent jurisdiction – yes, with a pretty huge but

 

101.S.25 does not cover all circumstances in which it may be necessary to deprive a child of their liberty. As Lady Black observed in Re D, at paragraph 100:

 

 

 

“The children who require help will present with all sorts of different problems, and there will be those whose care needs cannot be met unless their liberty is restricted in some way. But by no means all of these children will fall within the criteria set out in section 25(1)(a) and (b), which are the gateway to the authorisation of secure accommodation. It seems unlikely that the legislation was intended to operate in such a way as to prevent a local authority from providing such a child with the care that he or she needs, but an unduly wide interpretation of “secure accommodation” would potentially have this effect. It is possible to imagine a child who has no history, so far, of absconding, and who is not likely actually to injure himself or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with his own welfare, needs to be kept in confined circumstances.”

 

It is well established that a judge exercising the inherent jurisdiction of the court with respect to children has power to direct that the child be detained in circumstances that amounts to a deprivation of liberty. Where the local authority cannot apply under s.25 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted: s.100(4) Children Act. As I have already noted, the use of the inherent jurisdiction for such a purpose has recently been approved by this court in Re T (A Child) (ALC Intervening) [2018] EWCA Civ 2136. In Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam), Sir James Munby P, in a series of test cases, set out the principles to be applied. It is unnecessary for the purposes of this appeal to revisit those principles in this judgment. Last week, Sir Andrew McFarlane, President of the Family Division, published guidance, focusing in particular on the placement under the inherent jurisdiction of children in unregistered children’s homes in England and unregistered care home services in Wales.

102.Where, however, the local authority applies under s.25 and all the relevant criteria for keeping a child in “secure accommodation” under the section are satisfied, the court is required, by s.25(4), to make an order under that section authorising the child to be kept in such accommodation. To exercise the inherent jurisdiction in such circumstances would cut across the statutory scheme

 

(To make this clear – a Court cannot on an application under s25 where there is no bed, use inherent jurisdiction to place the child in a unit which is not approved as a Secure Unit and authorise restriction of liberty. They can do this if there isn’t a s25 application OR if they find the s25 criteria are not met but somehow it is still proportionate to restrict the child’s liberty – I can’t at the moment conceive of such a scenario but it is out there as a possibility)

 

 

Is secure binary? I don’t know, but… maybe not?

 

It is really a question of whether the proportionality and welfare evaluation is limited to ‘there being restrictions’ or looking at the individual restrictions. I honestly don’t know. This is the paragraph that comes closest to it

 

120….when a local authority takes a decision about a child under section 25 there must be some proper measure of proportionality as between the purpose or objective behind the proposed deprivation and both (a) the very fact of deprivation (ie the decision to place the child in secure conditions in the first place) and (b) if such a decision is properly taken (ie is proportionate) the nature and degree/extent of the deprivation (ie the extent of the actual restrictions imposed upon the child in secure conditions).

 

The Court of Appeal also remind us that article 8 of the HRA applies to making a Secure Accommodation Order

117…both Articles 5 and 8 are capable of applying to the deprivation of liberty of a person, including of course a child. Indeed, whenever a person is deprived of liberty (thereby engaging Article 5) that executive act will almost inevitably engage that person’s private life rights under Article 8. When an authority deprives someone of their liberty private life is by its nature curtailed. Lady Hale in Re D (A Child) [2019] UKSC 42 (Re D) at paragraph [3] made a similar point about the combined effect of Articles 5 and 8 as they applied to the rights of a child and those of parents.

 

 

I said that I’d quickly run through the facts of the appeal – basically a LA made a s25 application, there was no bed so the child was placed at a non-Secure unit (named “N”) and restrictions to the child’s liberty were authorised under inherent jurisdiction. The LA when a secure unit was found, applied for a s25 order to move the child from “N” to that unit. The Judge found that the test wasn’t met, because it was limb s25(1) (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.    And the Judge considered that the child could be kept in N, which wasn’t secure accommodation, and so didn’t meet the test. And then went on to decide that it wasn’t in the child’s interests to be moved.

 

The Court of Appeal say that the Judge was wrong in deciding that N wasn’t secure accommodation (for reasons explained many pages ago) and that thus the criteria were made out. The Judge would have been entitled to decide that moving the child from N to another unit was not in the child’s interests but the Judge had not carried out the proportionality and welfare evaluation (that the Court of Appeal only just decided was necessary, so that’s harsh) to make that decision.

“And all the pieces matter…”

 

 

 

This is a Court of Appeal case where a Judge having heard a 3 day hearing about an alleged fracture to a 3 year old’s arm ended up giving an oral judgment at 4.30 pm on the third day, that lasted until 6.45pm.

S (A Child: Adequacy of Reasoning), Re [2019] EWCA Civ 1845 (31 October 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/1845.html

 

(By the way, the Court of Appeal don’t title a case “Adequacy of Reasoning” and then conclude ‘yes, it was perfectly adequate’…)

 

The judgment did not explain the reasoning for the judicial findings and was sent back for re-hearing.

 

As the Court of Appeal say in the judgment

 

34.I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge’s clarification at [89]. I would also accept that a judgment must be read as a whole and a judge’s explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge’s conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.

 

Thus giving me the opportunity to make a Lester Freamon Wire reference in the title, yay.

 

The Court were sympathetic to the pressures on the Judge

 

 

 

 

2.As we told the parties at the end of the hearing, this appeal must be allowed. In reaching that decision, we do not overlook the reality. Judges are encouraged to give extempore judgments where possible and appeals will not succeed simply because matters might be better expressed with the luxury of extra hours of preparation or because judgments may contain imperfections. What matters is that the parties know the outcome and the reasons for it. Where the essential evidence has been considered and the decision has been adequately justified, that will do. In this case however, it did not happen. Despite the judge’s efforts, the parties were at the end of the judgment unsure what she had decided about the two main issues in the case. Clarification was sought. It to some extent makes the judge’s intentions clearer but too many actual or arguable inconsistencies remain and important conclusions are inadequately explained. There will regrettably have to be a rehearing.

 

The Court of Appeal give Judges in a similar position an out

 

The questions that the judge therefore had to ask were these[1]:

 

 

 

 

(1) Had the local authority proved that the injuries were inflicted as opposed to being accidental?

 

(2) If the injuries were inflicted, who had the opportunity to cause them?

 

(3) Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional ‘known perpetrator’ finding)?

 

(4) If only two people (the mother and Mr C) could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an ‘uncertain perpetrator’ finding).

 

(5) Once these questions had been answered, had it been proved that the mother had failed to protect S from being injured or covered up what she knew about how he was injured?

4.Unfortunately the judge did not approach matters in this way.[2] Once she had decided to give the parties her decision that day, it would have been better if, rather than delivering a 30 page judgment under time pressure, she had simply set out and answered the necessary questions and given her essential reasons in a few additional lines. This is in any event a useful discipline, particularly where a party is unrepresented. Everyone knows exactly what has been decided and why. The full decision could follow, either then or at a later date.

 

It seems from my reading that it was fairly clear to see that the Judge thought the fracture was deliberately caused, and that the mother’s partner had been less than frank in his evidence and account, but having said that the Judge thought it was likely that the child was injured in the care of mother’s partner, Mr C, the Judge doesn’t really explain how she went on to find that she could not identify a perpetrator and found that it was either mum or Mr C.  Which explains why the mother appealed.

 

32.In Re N-S (Children) [2017] EWCA Civ 1121, McFarlane LJ said this:

 

 

 

“30. The need for a judge to provide an adequate explanation of his or her analysis and the reasoning that supports the order that is to be made at the conclusion of a case relating to children is well established. Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and others judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead. In addition, of course, inadequate reasoning is a serious impediment to any consideration of the merits of the judge’s decision within the appellate process.”

 

An important point arises that the Court of Appeal asked for a transcript of the hearing but that

the court tape was such poor quality that none of the evidence or judgment (except the evidence of Dr Watt, given by video link) could be transcribed.[3] The advocates agreed a note of judgment which was amended by the judge and handed down electronically on 12 June 2019.

Ladds ladds ladds

 

The Court of Appeal give guidance on how to challenge findings of fact made where the ground to do so is as a result of fresh evidence.

 

Re E (Children :Reopening findings of fact) 2019

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1447.html

I’ll dash through the facts of the case.  Child aged 10 months found to have 3 cigarette burns on her arm, variety of explanations given, rejected by expert in care proceedings, Court made findings of inflicted injury. Care Orders were made in relation to that child and two older siblings.   At  later criminal proceedings of mother, a medical expert accepted mother’s explanation of an accident and the criminal case was dropped.

 

Those representing the mother considered this to be fresh evidence, capable of satisfying the Ladd v Marshall guidance

  1. Ladd v Marshall [1954] 1 WLR 1489 remains powerful persuasive authority: see Sharab v Al-Saud [2009] EWCA Civ 353 and generally the discussion in the White Book 2019 at 52.21.3.
  2. Ladd v Marshall familiarly provides that:
        1. “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
  3. The durability of Ladd v Marshall shows that it encompasses most factors relevant to applications that are likely to arise in practice but as Hale LJ noted in Hertfordshire Investments Ltd. v Bubb [2000] EWCA Civ 3013 [37] the criteria are not rules but principles to be looked at with considerable care.

 

 

There has previously been judicial discussion as to whether the Ladd v Marshall provisions should be more generously interpreted in family cases, and the Court of Appeal clarify this

 

  1. It has been said that the Ladd v Marshall analysis is generally accepted as being less strictly applied in cases relating to children: Webster v Norfolk County Council [2009] EWCA Civ 59 per Wall LJ at [135]. At [138] he continued:
        1. “The rationale for the relaxation of the rule in children’s cases is explained by Waite LJ in Re S (Discharge of Care Order) [1995] 2 FLR 639 at 646, where he says:-

The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.”

  1. In Re G (to which I have already referred) Macur LJ made this observation about Webster:
        1. 16. For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.”
  2. A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.

 

 

Those representing the mother believed, reasonably, that the only route open was an appeal

When pursuing the route of an appeal out of time, those then advising the mother believed that it was the only course open to her. That belief was understandable, being based upon a statement now in the Red Book 2019 at p.2247 that the first instance court has no jurisdiction to re-open findings of fact once an order is sealed, a statement that reflects obiter observations made by this court in Re G (A Child) [2014] EWCA Civ 1365,

 

The Court of Appeal were looking, however, as to whether an alternative route of inviting the Court who made the findings to revisit them in the light of fresh evidence was available.

 

I think most of us believed that once the order was sealed, the Court was done, and it would have to be an appeal.

 

A case I wrote about years ago suggested this (it is the one where the Judge originally gave a judgment finding one parent responsible for the injuries but before the order was typed up and sealed changed her mind and found the other responsible.  This was permissible as long as the order were not sealed.  Permissable procedurally in any event, there are obvious appeal points about the forensic process.

 

  1. The case referred to (Re L and B) was an unusual one. A trial judge had given a short preliminary judgment at the end of a fact-finding hearing, determining that the father was the perpetrator of injuries to the child. A request for clarification was made and two months later a ‘perfected’ judgment was provided in which the judge stated that both parents may have been the perpetrator. The Supreme Court held that on the facts of that case the judge had been entitled to change her mind as the order in that case had not been sealed. These are the paragraphs referred to in Re G:
        1. “16. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.

19. Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal.

42. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.”

  1. These paragraphs are therefore particularly concerned with the circumstances in which a judge may or may not change his or her mind. They are not addressed to a situation in which the court is being asked to take account of further evidence, although that clearly could be one reason for a change of mind

 

 

It was clear in this case that the Care Orders had been made, and thus the orders sealed, so appeal seemed to be the only route to looking at the findings again in the light of the medical evidence obtained in the criminal proceedings.

 

BUT

  1. 40… more fundamentally, the statutory landscape had changed with the establishment of the family court. The court came into existence on 22 April 2014 by virtue of Part 4A of the Matrimonial and Family Proceedings Act 1984. This includes section 31F (‘Proceedings and Decisions’), comprising nine subsections of which two are relevant:
      1. “…

(3) Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.

(6) The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.

…”

  1. In my judgment, s. 31F(6) gives the family court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter. While a finding of fact is not in a strict sense “an order”, it can comprise the determination of an issue that is crucial to the disposal of the proceedings and is susceptible to appeal: Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 per Dame Elizabeth Butler-Sloss P at 336-337. Such a finding of fact is integral to the order on which it is based and accordingly comes within the scope and purpose of the section.
  2. My further assessment that s. 31F(6) continues to apply after the end of the individual set of proceedings is based firstly on the fact that the words of the section are not expressed to be limited in duration, but secondly and more fundamentally on the intrinsic nature of family proceedings. As I said at the outset, findings of fact can have longstanding consequences for children and families. Their effect is not only felt in the moment they are made, but persists over time. There is therefore no reason to limit the time within which the court can exercise its power to correct a flawed finding of fact that may have continuing legal or practical consequences.

 

Obviously if the original Judge does not do so, the route for an aggrieved parent then is appeal, but this opens the door to the original Judge being asked to reconsider as an alternative to an appeal.

 

  1. Having established that the family court has jurisdiction to review its findings of fact, the next question concerns the proper approach to the task. As with the approach of an appeal court to the admission of further evidence, the family court will give particular weight to the importance of getting it right for the sake of the child. As was said in Re L and B at [41]:
        1. “In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.”
  2. The test to be applied to applications for reopening has been established in a series of cases: Birmingham City Council v H (No. 1) [2005] EWHC 2885 (Fam) (Charles J); Birmingham City Council v H (No. 2) [2006] EWHC 3062 (Fam) (McFarlane J); and Re ZZ [2014] EWFC 9 (Sir James Munby P).
  3. These decisions establish that there are three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
  4. In relation to the first stage, these decisions affirm the approach set out in Re B (see para. 28 above). That approach is now well understood and there is no reason to change it. A court faced with an application to reopen a previous finding of fact should approach matters in this way:
    1. (1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.

(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3) “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.” There must be solid grounds for believing that the earlier findings require revisiting.

  1. I would also draw attention to the observations of Cobb J in Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326 (Fam) about the care that must be taken when assessing the significance of further medical opinions at the first stage (para. 71) and as an example of the need to control the identification of issues and gathering of evidence at the second stage (paras. 86-89).
  2. Pausing at this point to compare the hurdles facing an applicant to the trial court and an applicant to this court, it can be seen that the processes are by their nature different. The gateway under CPR 52.21(2) and the Ladd v Marshall analysis concern the admissibility of evidence, while the first stage of an application for a review requires a consideration of the overall merits of the application. It cannot be ruled out that the different procedures might throw up different results in similar cases, but on the whole I think that this is unlikely. In both contexts, the balancing of the public interests is carried out with a strong inclination towards establishing the truth in cases where there is good reason for a reassessment, and as a result the outcomes will tend to converge.

 

The Court of Appeal note that there is presently a lacuna in that the Family Court can be asked to reconsider findings but not the High Court, and that this has been fixed in relation to ancillary relief by FPR 9.9a and that the Family Procedure Rules Committee may wish to consider doing the same for children cases in the High Court.

 

 

ADMs apple

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.

“…such obviously fallacious legal arguments”

 

 

The ever-continuing saga of the (imho misplaced) decision of the framers of the Children Act to express actual harm in the present tense rather than the past tense continues, and perhaps reaches its nadir in this case before the Court of Appeal, in which

 

pause, deep breath

 

a Judge was persuaded to summarily dismiss the application for a Care Order following a byzantine (and as quoted from the Court of Appeal ‘obviously fallacious’) legal argument that because the child was in a safe place at the time of issue and the LA could not say that at that date of issue the child ‘is suffering’ significant harm, the case should be thrown out

 

 

H-L (Children: Summary Dismissal of Care Proceedings)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/704.html

The threshold criteria expresses that

 

Section 31 (2)

 

A court may only make a care order or supervision order if it is satisfied—

 

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

(b)that the 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; or

(ii)the child’s being beyond parental control.

 

This whole thing with the present tense was litigated to hell in the early 1990s, and it is astonishing to me that the Courts are still being troubled with it. The threshold is decided with reference to the “Relevant Date” and if one can prove that (looking back in time) at the Relevant Date the child ‘is suffering’ then the threshold is met. The Relevant Date will OFTEN BUT NOT ALWAYS be the issue date. Where the harm is neglect for example, and the child is at home, the LA will say that the child “is suffering” from that neglect at the date of issue. BUT, what happens where the child is no longer in the dangerous home at the time the proceedings start (they are with grandmother, or in foster care, or the risky adult has moved out) – well, in that case the Relevant Date is the date when those protective measures were put in place.

 

Jackson LJ opens the case with a background history that I can’t improve upon

 

1.A two-year-old child is examined by a hospital paediatrician. She is found to have about 20 bruises, including groups of bruises on the face, neck and arms that are in the doctor’s opinion highly likely to have been caused by forceful grabbing by an adult. There are three people who could be responsible: the mother, the father, and a non-family carer. The local authority is immediately informed and it begins child protection inquiries. The police also investigate. All three adults deny causing any injury. Plans need to be made for the child and for her six-year-old half-sister. The mother and the two fathers have different views about where the children should be placed.

 

 

2.A scenario of this kind would be familiar to any social services department and to any family court. Both agencies are given wide and flexible powers, mainly under the Children Act 1989, that they are under a duty to use to protect children and promote their welfare, while at the same time being fair to adults. Both agencies will recognise that a child that has suffered transient injuries may be more seriously injured over time and that other children in the household may face similar risks. They will also recognise that delay and inefficiency will work against the interests of the children and may well be harmful to them. Accordingly, on these facts the local authority will undertake a swift assessment and, on it becoming clear that the source of the risk has not been established, will take steps to ensure that proper plans can be made for the children. This requires an adjudication on responsibility for the injuries, something that can only be done by the court. The local authority will therefore issue proceedings to allow the court to reach a factual conclusion and to make any orders that may then be necessary. The court process should in all normal circumstances (and there is nothing particularly abnormal about these) be completed within the statutory period of 26 weeks, allowing the children and their family to move on with their lives on the basis of sound plans, built on the best possible understanding of what went wrong and how it might be avoided in future. That understanding is not only needed for the sake of these children, but also for the sake of any other children for whom the parents may in future be responsible.

 

 

3.Unfortunately, that is not what happened in the present case. Neither of the key agencies acted correctly. The local authority secured alternative arrangements for the children without having any legal standing for doing so, and it then delayed for three months in issuing proceedings, which it then pursued in what the court rightly described as a shambolic manner. For its part, the court departed from established case management practice and authority before striking out the proceedings in week 15 without conducting any investigation whatever into how the child came by her injuries. In doing so, it accepted and adopted a legal argument born of a profound misunderstanding of the basic statutory regime governing proceedings of this kind. During the lifetime of the proceedings the court did not make any statutory orders to govern the arrangements for the children, even to the extent of making the interim supervision orders requested by the local authority, being the least level of protection that the situation required.

 

 

4.The net result is that almost a year has passed since the child went to hospital without there being the smallest increase in our understanding of how she was injured. In the meantime, the children’s lives have continued on the basis of arrangements brokered (until the proceedings were dismissed) by the local authority without legal authority or (since the proceedings were dismissed) by the parents themselves. The process has been unproductive and substantial amounts of public money have been wasted on legal costs, along with the depletion of scarce professional time. The process has also been hard for the children, who have been separated from their main carer and from each other, and for the parents, who have been bewildered by the actions of the agencies. If there is any silver lining it is that they have to some extent become united in their bewilderment, so that their relationship with each other may be better now than it was before the events arose. It can at least be said that this case may be unprecedented, in that neither this court nor counsel appearing before it are aware of a previous instance, reported or not, of care proceedings being dismissed at an interim procedural stage against the opposition of the local authority and the Children’s Guardian.

 

 

It is easy to understand why the Judge was irritated at the two huge failings of the LA – first to remove the children from mum and place with dad without any proper agreement (and actually at the time dad was one of the possible suspects for the injuries) and second to delay for so long in issuing proceedings. That makes perfect sense to me.

 

The bruising was noticed on 13th May.

 

 

 

16.The local authority held a legal planning meeting on 28 May, when it was advised that the threshold for court proceedings was crossed. On 7 June an Initial Child Protection Conference took place and the children became subject of child protection plans. On 22 June the local authority held a legal gateway meeting at which it was decided to take the matter to court. On 9 July the social worker completed her statement. On 12 July an ‘intent to issue’ meeting was held. Despite that, it took the local authority until 23 August 2018 to issue care proceedings, seeking interim supervision orders in the short term and an expeditious fact-finding process.

 

 

17.A further consequence of the local authority’s delay in issuing was that the parents were not fully legally represented during the period of the delay. Nor did the children have a Guardian to represent them or monitor their situation. Also, the mother in particular was distressed at the children’s removal from her care, but was not given a forum in which she could readily challenge it

 

Things seem to have gone badly awry at a hearing on 1st November

 

 

 

 

24.Also at the hearing on 1 November, discussion started about the ‘relevant date’ for proving the threshold. The local authority had asserted that this was the date of the issue of proceedings, but counsel then vacillated by telling the judge that the relevant date was 14 May before returning to the pleaded case. For their part, counsel acting for Mr H and for the Guardian submitted that if the relevant date was 14 May, it was arguable that the threshold was not met since the children had been placed by the local authority with people with parental responsibility. This issue was taken up by the judge who, no doubt exasperated by the local authority’s approach, said: “I cannot think of any better way of expediting proceedings than the court concludes that threshold is not crossed and the application is dismissed.” There then followed this exchange between the judge and counsel for the Guardian:

 

 

 

 

JUDGE: … If 14 May is not the relevant date and the relevant date is the date on which the proceedings were issued, how does the Local Authority prove that on that date, either of the children were at risk of significant harm?

 

 

COUNSEL: … If the relevant date is the date of the issue of proceedings, then in my submission, the likelihood of significant harm for Lara flows from the risks that are posed by mother being within the pool of perpetrators.

 

 

JUDGE: At the time the proceedings were issued, Lara was in the care of her father… so, how could she be at any risk of significant harm?… I am intrigued, because this is a point that has never really been developed before… But it is a point that might actually be fatal to the local authority’s case.

25.The judge said there was a real question mark in his mind as to whether or not the local authority could possibly succeed, and something to be said for the court determining the issue on “a quasi-summary basis”. He therefore listed this issue and others for legal argument on 23 November and directed skeleton arguments to be filed. This led to the parties filing over 60 pages of legal submissions on this and other issues, something that I consider to be completely inimical to the scheme of the legislation. This whole sequence of events shows that the court had strayed from its mission, which was to seek to discover how a small child had received worrying injuries.

 

 

26.At the hearing on 23 November, Mr L (who, it will be recalled, had conceded in September that the interim threshold was obviously crossed) was represented by leading counsel, Mr Vine QC. It was by now common ground that the relevant date was the date of the issue of proceedings, avoiding any need to consider complex arguments about whether protective measures had been put in place in May that might have complied with the criteria set in Re M (above). I set out the core of Mr Vine’s argument, in fairness to the judge, because it is the argument he went on to accept:

 

 

 

 

“24. While the Local Authority now correctly identifies the ‘relevant date’ in their revised threshold document as being 23 August 2018, the date of issue of the application for care orders, it is not able to establish that the section 31 (2) threshold conditions were satisfied at that time unless it can establish Mr L as a possible perpetrator of Nina’s injuries… This is because, as at the relevant date, (a) Nina was already in his care, (b) the child protection plan was being complied with, in particular, the mother’s contact (certainly in relation to Nina) was being supervised, and (c) there was no need for a care or supervision order.

 

 

  1. If that is correct, there is no statutory basis for these public law proceedings, and if mother seeks to resume care of the children or unsupervised contact in a departure from the child protection plans, her remedy (absent judicial review) is to apply for child arrangements orders under s. 1 (sic). In that event, there would still be a role both for (a) fact-finding in respect of Nina’s injuries, and (b) Local Authority welfare evidence by way of a section 7 welfare report, but that does not mean that these proceedings should proceed on a flawed footing.”

27.At the hearing, there were lengthy exchanges between the judge and counsel then acting for the local authority. They included these:

 

 

 

 

“JUDGE:… I mean, the wording of the relevant provision of Section 31 is in the present tense, so it means that the court looks at 23 August and asks itself the question, is the child at risk of suffering significant harm as at that date, or has the child suffered significant harm as at that date.

 

 

COUNSEL: Well, we know in respect of Nina, that is right. She has suffered –

 

 

JUDGE: Well no, because she had suffered significant harm arguably back in May… and by the time you issued your proceedings, she has… effectively from the point of view of the Local Authority at that time been removed from the source of that danger, has she not.… I have a real conceptual difficulty at the moment with understanding how one can say as at 23 August 2018 the children were at risk of significant harm. I make no bones about it. I have had that difficulty right from when this case first came before me.”

 

And later:

 

 

“JUDGE: … So, does it come down to this then… or am I oversimplifying it, that the risk of harm as at 23 August, in fact stems from the fact that Nina is living with someone you now say was responsible for or may have been responsible for her injuries in May?

 

 

COUNSEL: Yes … Firstly, because of course you’re not just considering this father. Of course, section 31(2)(b) relates to ‘a’ parent… the mother is also in the pool of perpetrators –

 

 

JUDGE: But as at 23 August the child is not living with the mother… So the child cannot be at risk of suffering significant harm from anything attributable to the mother.”

 

Counsel for the local authority unavailingly pressed her case. She stressed that a dismissal of the proceedings would mean that there would be no determination of the issues. The judge, probably inspired by Mr Vine’s submissions, said that the matter could be dealt with in private law proceedings between the parents, to which counsel responded that this would lead to the “farcical” result that the local authority would then be asked to provide a section 37 report and “we are then back where we are now.”

 

Further exchanges included (in telescoped form):

 

 

JUDGE: … What you have done is… you have taken some steps, as the Local Authority thought, to protect children and then 3 months later, [you] issue proceedings and are now trying to argue that that the three-month delay is really immaterial…

 

 

COUNSEL … But it cannot be right surely just because we didn’t issue on 14 May that then we should have not gone on to issue with, as I say, the injuries unexplained to this child… And in looking at the risk of harm, one looks at the risk of harm presented by either of these parents, not both parents… one has to consider the risk looking backwards. That includes the injuries. It also then considers the risks going forwards, beyond those injuries, in as much as how it is that the parents are then preventing that risk of harm for that child going forward.… It’s a live risk that was still present then on 23 August. Whilst the child wasn’t in the mother’s care at that time, there is still the risk of significant harm because she was part of the pool of the unexplained injuries. It cannot be right that the court says, just because therefore the risk isn’t there because the child is not with the mother therefore threshold is not met.”

28.Mr Vine then pursued his written submissions to the effect that the threshold could not be established in Nina’s case, unless there was a real possibility of Mr L being responsible for the bruising. He relied on the case of Re C (above). He submitted:

 

 

 

 

“You can decide the case summarily. You don’t need to wait until the evidence has been tested if the propositions are not capable of being established, and you can exclude an issue.”

29.Counsel for the mother and for Mr H echoed Mr Vine’s submissions. Counsel for the Guardian expressed concern about the children’s position and distinguished the case of Re C, but did not squarely confront the legal issue of the threshold. By contrast, the Guardian’s submissions on the appeal crisply note that the proceedings had been dismissed without the Guardian filing an interim analysis, without the evidence of the paediatrician and without consideration of the risks that might be posed by the mother, regardless of the position of the fathers.

 

 

 

The Judge’s decision

30.In a reserved judgement given on 7 December, the judge dismissed the proceedings, and with them the direction for the paediatric report. He also amended the orders dated 10 October and 16 October “pursuant to the slip rule” by removing recordings that the court had found the s.38 interim threshold had been crossed and substituting recordings that the threshold had remained in dispute.

 

 

31.The judge described the case as “deeply troubling”. He expressed his concern about the local authority’s approach to the proceedings. He confirmed that he had kept the welfare of the girls in the forefront of his mind. They had gone from being with their mother and each other to being separated and living with their respective fathers and seeing their mother only for contact. He continued:

 

 

 

 

“11. … I am acutely aware that whatever decision I make today will not immediately improve their position and that, inevitably, there may be further delay before final decisions are made about their future.”

 

 

Father’s counsel stood by those submissions at the Court of Appeal hearing. It does not appear that the Court of Appeal found this a difficult appeal to resolve.

 

 

46.As will be apparent from what I have said above, and as we informed the parties at the end of the hearing, this appeal comprehensively succeeds. The judge erred in law by failing to recognise that the threshold for intervention was plainly crossed on the basis that at the date of the issue of proceedings both children were likely to suffer significant harm arising from the clear evidence about the very worrying injuries to Nina, for which one or other of her parents might, when the evidence was heard, be shown to have been responsible. He was in no position to prejudge that matter, and wrong to do so. It is a matter of regret that he should have been faced with such obviously fallacious legal arguments, particularly when advanced by leading counsel of Mr Vine’s standing. However, those arguments were clearly exposed as fallacies by counsel then acting for the local authority, and the judge should have given them short shrift. He should have affirmed that the threshold is to be approached from the perspective of the children, not from the perspective of the parents, one of whom may have been responsible for Nina’s injuries. He should have appreciated that delay in bringing proceedings, however lamentable, cannot of itself be determinative of the threshold. He should have realised that the fact that injuries are unexplained does not make them irrelevant, but rather raises an unassessed likelihood of future harm, aptly described in the local authority’s submissions to the judge as “a live risk.” Rather than seeking to cast doubt on the analysis undertaken by this court in Re S-W, by which he was bound and which was and remains authoritative guidance on the summary determination of public law care proceedings, he should have applied it. He should particularly have cautioned himself against terminating the proceedings when that course did not have the support of the Guardian, nor any written analysis from her. He should ultimately have seen the absurd impracticality of this unprecedented outcome, and the inappropriateness of private law proceedings as a surrogate forum for child protection. The injuries to this child cried out for investigation and the law, far from preventing it, positively demanded it.

 

 

47.For all that the judge’s task was made more difficult by the inadequacies of the local authority, courts have to work with the resources available to them. The sterile outcome in this case could easily have been avoided through normal case management procedures and loyal application of well-established law. Instead, the proceedings drifted with no strategic direction and a dissipation of energy on irrelevant issues, all greatly to the disadvantage of these children. They and the adults are entitled to a judicial determination of how Nina’s injuries were caused, and the directions that we now give will ensure that this happens as soon as reasonably possible. The order of 7 December will be set aside, so that the proceedings revive. The case will be allocated to another judge, by arrangement with Keehan J as Family Division Liaison Judge, and will be listed for an early single case management hearing at which it can be decided whether or not a split hearing remains appropriate and whether the direction for a further paediatric report remains necessary. We will also make an interim supervision order, to continue until the conclusion of the proceedings

 

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

 

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