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Parents can consent to restriction of liberty for children under 18, Court of Appeal rules

This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.

Re D (A child) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/1695.html

The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.

84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality is that, in any particular context, one child may have ‘Gillick capacity’ at the age of 15, while another may not have acquired ‘Gillick capacity’ at the age of 16 and another may not have acquired ‘Gillick capacity’ even by the time he or she reaches the age of 18: cf, In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, pages 24, 26.

128.In my judgment, in the context with which we are here concerned (see paragraphs 84-85 above), parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘Gillick capacity’.

Consider a dentist, who is deciding whether to treat someone who is not an adult. If a 7 year old says “I don’t want you to take my teeth out” the dentist will of course look to the parent to say yes or no, and won’t take the child’s views as being final. If a 15 year old says that, the dentist may try to encourage and persuade, but can’t really just operate against the 15 year old’s will, and nor can they just take parental consent. The 16 year old with capacity has autonomy over their own body and mouth. BUT if the parents come with a 16 year old and explain that as a result of special needs, the young person lacks capacity, the dentist would probably be able to take the parental consent as being valid. The parents are exercising parental responsibility for a young person who does not have Gillick competence to make their own decisions (even though they are of an age where most young people would be)

I’m not sure that I agree with this conclusion, and I feel that it has some issues with Lord Kerr’s formulation in Cheshire West.

“77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

79 Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”

And later

157.The ECHR enshrines the rights of the citizen, but its principal purpose and function is the protection of rights by engaging the State. The Convention is not an academic exercise. Key questions in every case where the Convention is invoked are: on the facts, is there an obligation for the State to become involved? Are the domestic laws and procedures apt to engage the State when necessary, and to protect the citizen’s rights? But these are questions to be asked and answered of the domestic law, for our purposes the common law.

158.It should be no surprise that the common law has provided the answer here. Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being “confined” so as to fulfil the first limb of the test in Storck.

159.Where there is confinement in the sense I have indicated, so that there may be a need for the State to engage to prevent possible abuse, the questions then become whether parental rights (and duties) can justify the confinement, and whether the State may have an obligation, to be discharged by local authorities and perhaps by the courts, to intervene. Excessively cautious or strict parenting, leading, let us say, to a fourteen year-old who is prevented from ever leaving the house save to be transported to and from school by a parent, might be a case of “confinement”. Other more extreme examples clearly would do so. Then the issue of whether the confinement is justified may arise. It will be evident that such cases are highly fact-specific and that the State will accord great flexibility to parents in caring for their children. That flexibility must reflect the facts, including the “discretion” of the child.

It rather seems to me that the nuts and bolts of Cheshire West are that one compares whether the restrictions on a child are part and parcel of family life or above and beyond that, not by comparing X child with one of similar needs and circumstances but with a child of a similar age. And that means that it would NOT be reasonable for a foster parent to lock the bedroom door of a 17 year old or restrain them if they tried to leave the home, and it doesn’t become reasonable just because X happens to lack capacity and needs those restrictions to keep them safe.

The Court of Appeal have clearly spent hours and hours on this, and my gut feeling is just my gut feeling, so it would be utterly wrong of me to try to argue that the Court of Appeal are wrong here.

Re D is the law now. Re D is.

Re D is.

Re D is

Re D is

(And if you aren’t reading Tom King and Mitch Gerard’s “Mister Miracle”, can I urge you to do that in the strongest possible terms? It is a mark of how great they currently are that the only work to compare to it this year is the same creative team’s run on Batman. )

The Court of Appeal stress that if a Local Authority are relying on parental consent to authorise a restrictive regime in foster care, they can’t simply rely on generic section 20 consent to authorise this.

149.Finally (paras 126-128), Keehan J rejected the local authority’s contention that the parents’ consent to D being accommodated pursuant to section 20 of the Children Act 1989 was a valid consent to D’s confinement at the residential unit. He disagreed with Mostyn J’s analysis in Re RK (Minor: Deprivation of Liberty) [2010] COPLR Con Vol 1047. Furthermore, he said (para 128):

“the “consent” is to the child being accommodated. It cannot be inferred that that consent means that those with parental responsibility have consented to whatever placement the local authority considers, from time to time, appropriate.”
150.I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council [2017] EWCA Civ 26, [2017] 3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.

(I’m not at all sure now of the status of Keehan J’s previous assertion that whilst parents can consent to restriction of liberty in foster care under s20, they can’t do so under ICOs because the threshold has been found to be crossed. That wasn’t in the case that was appealed, and it has always seemed to me a rather arbitrary distinction. I can’t see that the Court of Appeal look at this, but it is a long judgment, I may have missed it.)

Re D is.

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Eleven plus and Spycatcher

 

 

This one is a little outside our normal remit, but it covers Education, and hence children, and it is a bit unusual. In fact, even though it is a question about the legal implications of leaking exam questions it would actually make a perfect legal exam question – which I’m sort of leaking in advance of anyone actually doing it.

 

Matalia v Warwickshire County Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/991.html

 

Mr Matalia owned a website. I’m not sure what else he was doing on the website, but one of the things that he did in 2013 was post some information about the contents of the 11 plus exam being used in Warwickshire after it had taken place.

He was able to learn what the contents were by making some enquiries of children who had sat the exam (I believe his nephew was one of said children)

So what? What earthly use is knowing the contents of an exam AFTER the event? That’s like someone running up to you with a hot tip for the Grand National and telling you that Red Rum won it three times in the Seventies. It’s not inaccurate, but it isn’t useful.

Well, except that not everyone who sits the 11 plus exam in Warwickshire does so at the same time  (which I personally think is something of a flaw in the security of their system, which Mr Matalia has exposed). There are three separate examination sitting dates, all using the same paper. So if you are taking the test on the third of those sitting dates and you know what is in the test because someone who was in sitting date one tells you, you have an advantage.

(Assuming there’s a grade curve, rather than a hard pass mark, it is utterly disdvantageous to people who sat the exam on the first date to help out people sitting later on, and actually if it were me, I’d tell them the questions were largely about the role of crocodiles in Egyptian mythology so they’d crash and burn, but that’s by the by)

 

Here’s what went onto Mr Matalia’s website

 

 

“A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

A. Longer maths. 4 long questions with subsections (perhaps 15 minutes).

i) A question relating to luggage dimensions and time differences: London and Hong Kong.

ii) Cinema tickets, time calculations and prices.

iii) Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

iv) Swimming suggestions – swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

Some questions were difficult and many may not complete the questions.

B. Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.”

 

  • The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The “Matching Words” section required candidates to give “thrifty” as a synonym for “frugal”. The judge found that the section on the website headed “Longer maths” also “contained truth”. He referred to an email dated 10 September 2013 in which the University told the Council that there were “4 maths Qs (6 marks) where day 2 candidates may be at an advantage – although the exact Qs are not revealed”.

 

 

It doesn’t sound as though Mr Matalia’s nephew was some sort of super-spy, taking detailed notes of the exam questions as part of a well designed scheme, but rather that those were just the bits he happened to remember when asked about them.  I mean, knowing that the Comprehension question was based on an article about lemurs doesn’t help you in the slightest. It isn’t going to be beneficial to cram the Wikipedia entry on lemurs to give you an edge. Also ‘cinema tickets, time calculations and prices’  is, when you boil it down ‘some questions involving maths’ – which I think most children sitting an Eleven Plus exam would probably anticipate.

But a visitor to the site who would be sitting the exam on one of the two later sitting dates would gain a slight edge (and on at least the thrifty/frugal question would pick up a free mark)

The Council asked Mr Matalia to take the exam spoilers down.  He refused and the Council applied for an injunction. They asked him to take the spoilers down before the trial. He refused.

 

Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, “it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.” He also stated that he understood that “there is a surprise waiting for [the Council] for this year’s 11+ exams. I won’t spoil the fun….I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.”

 

Without trying to be unkind, and avoiding any feelings about whether eleven plus exams are a good thing, bad thing, indifferent thing, it does feel from the outside something of an unusual thing for a grown man to do, to post spoilers about an exam to be undertaken by eleven year olds.  I really don’t know what else was going on his website, or how that content fitted into the general scope of the site…  (It would make more sense to me if he were publishing the full questions and answers and charging for access. I don’t really understand the motivation here. It doesn’t seem like a political protest against grammar schools or trying to subvert the system, nor does it actually seem like a monetarised plan. I guess it was simply for the lulz)

 

 

Anyway, the Council got their injunction, banning Mr Matalia from posting on his website any information about Eleven Plus examinations in 2013, 2014 or 2015.  This was Mr Matalia’s appeal.

 

The case was decided on the principle of ‘breach of confidence’  – this has three limbs

 

 

  • three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.
  • The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:

 

“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

 

Mr Matalia argued at his appeal (and I think it is a decent lawyer argument, though I suspect any normal human being would reject it immediately) – how can the information in an exam paper handed out to 1,600 children have a ‘quality of confidence’ about it? And when the paper was handed out to his nephew, how was there an obligation of confidence imported to him? Of course children talk about exams after they’ve taken them. And these days, they probably do so on social media, thus publishing their conversations.  With that in mind, how can the exam papers have that ‘necessary quality of confidence’?

He doesn’t argue, though it seems blindingly obvious to me – why don’t Warwickshire do their 11 plus exams all on the same day, then they don’t have to worry about this?

 

 

  • Ground 2 is as follows:

 

“2. The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1 the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2 the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3 the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1 “the testing process as a whole would not seem to have been compromised” and

2.3.2 “If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4 the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5 websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6 there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7 there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”

 

  • Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.

 

Ground 2.1: chain of confidentiality

 

  • Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.
  • Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:

 

“1. Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2. If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”

 

  • Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.

 

This is the nub of it – if the nephew wasn’t told, or it wasn’t written on the exam papers ‘this is confidential’ or ‘you must not talk to other people about what is in this test’ or words to that effect, was the test in Coco v Clark satisfied?

 

This is, however, where we get into law exam territory – literally.  The reference that the Court of Appeal give here is in relation to the Spycatcher trial (a case where a former employee of UK Security Services wrote a book about his experiences, published it in Australia and it was serialised by the Sunday Times with excerpts appearing in other newspapers) and the SPECIFIC reference is

. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

 

Come on, how meta is that? A law case about exam papers is decided by reference to a law case that was giving a hypothetical scenario beloved of law teachers.

 

The Court of Appeal liked this so much that they went back to it

 

It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.

 

Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.

 

The appeal was refused and the onward secrecy of Warwickshire’s Eleven Plus exams is secured. Hooray. (or Boo, depending on how you feel politically about grammar schools)

 

(Dragging us back to family law, I’ve written before about how just like Rorschach tests, many of the psychometric tests applied by psychologists in assessment of parents aren’t available online – to stop people deciding in advance how to answer them, or being coached. So I guess this would apply to an enterprising parent who photographed the test paper and tried to publish it. Don’t do that, obviously. That would be a breach of confidence, and you would be made to take it down.)

 

And just to make us all feel super thick, here’s an O Level Geometry paper from 1957.

 

Belinda blinked. How on earth was she supposed to answer these questions?

 

Here come the Hofstetter

Extraordinary, juice like a strawberry

The Court of Appeal in Re S-F (A child) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/964.html

Manage to go through the gears from – it might be helpful to see the Agency Decision Maker’s Hofstetter decision record as to how the decision as to adoption was reached to ‘it is good practice for the LA to provide that’ to ‘it is bad practice if they don’t provide it’ in the space of a single paragraph.

So from here on out, it is bad practice for a Local Authority not to file and serve the Hofstetter record when they lodge a placement order application.

Also, I’ve got this gold ring with writing on it that I need you to get rid of if you have a moment, the one that says “One ring to rule them all” – so if you could just dispose of that for me, that’d be just peachy. Thanks!

One does not simply walk into Mordor Family Proceedings Court…

(The Hofstetter document case http://www.bailii.org/ew/cases/EWHC/Admin/2009/3282.html Hofstetter and Another v London Borough of Barnet 2009

132.I appreciate that the Agency Decision Makers are very busy and the potential advantages both in saving time and resources, and in avoiding arguments based on differences of expression, that flow from them adopting the reasons for a recommendation. But in my view before that course is taken the Agency Decision Maker must consider with care, in the light if his or her role and the wider information he or she has, which of the reasons underlying the recommendations he or she is adopting and why this is the case.

133.Perhaps particularly when, as here, the recommendation for the qualifying determination and the decision in the case are the same, I suggest that, with a view to ensuring that the Agency Decision Masker approaches the making of the decision in the case, and thus a reconsideration of the case, with an open mind, and as the decision maker, it would be a good discipline and appropriate for him or her to:

i) list the material taken into account,

ii) identify the key arguments on both sides,

iii) ask whether he or she agrees with the process and approach of each of the relevant panels and is satisfied as to its fairness, and that both panels have properly addressed the arguments,

iv) consider whether any information he or she has that was not before a relevant panel has an impact on its reasons or recommendation,

v) identify the reasons given for the relevant recommendations that he or she does, or does not, wish to adopt, and

vi) state (a) the adopted reasons by cross reference, repetition or otherwise and (b) any further reasons for his or her decision, when informing the prospective adopters of that decision.

This is a fact and issue sensitive exercise. But in my view it, or a similar approach, should assist the Agency Decision Maker to identify the issues, the factors that have to be weighed and importantly his or her reasons (rather than those of others) for the decision that he or she is charged with making as the Agency Decision Maker )

Here is what the Court of Appeal say (in Re S-F) about it now being bad practice if the ADM minutes of the decision making process are not filed and served. Note the line about the record being ‘susceptible of cross-examination’


11. The permanence report and the agency decision maker’s record of decision contain the required analysis and reasoning which is necessary to support an application for a placement order. They are disclosable documents that should be scrutinised by the children’s guardian and are susceptible of cross examination. It is good practice to file them with the court in support of a placement order application. Given their importance, I would go further and say that it is poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the local authority’s decision to apply for a placement order.

Ryder LJ also reminded practitioners about Re B-S (in case anyone has forgotten it) but does so with punchy language

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for a child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

And stresses that the evidence and analysis has to be centred around the particular child, not merely relying on general thinking for children of similar ages and characteristics. What is right for THIS child, and why is that said to be right?

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.

The Court of Appeal also criticised the LA for stopping their family finding once they were aware that an appeal was pending – the appeal took ages to be heard, and therefore the Court didn’t have up to date evidence about the family finding process. (Candidly, I’d have done the same as this LA – you’re not going to find any matches for a child whilst there’s an appeal pending, and you can’t do anything with a potential match even if you find one. But don’t do that in the future – keep up the fruitless and time-consuming search for a match, just so you can tell the Court of Appeal that no prospective adopters want to be matched with a child whilst they know there is an appeal pending and that nobody knows how long the appeal process will take)

5. It is a matter of regret that in the six months that has intervened between the order complained of and the appeal hearing the local authority did not see fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement. The appeal after all is being heard at a time when the local authority would have abandoned its search for adoptive carers, the child having been with his foster carer for six months. The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority’s planning process over the same time period

Das reBoot – Court of Appeal find reverse gear (once again)

 

A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.

 

That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.

 

As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…

(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)

Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20.  The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.

 

I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html

 

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)

 

(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)

 

So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c)  was met, and that the parents objection had to be looked at in the context of s20(7) which states

 

(7) A local authority may not provide accommodation under this section for any child if any person who—

 

(a) has parental responsibility for him; and

 

(b) is willing and able to—

 

(i) provide accommodation for him; or

 

(ii) arrange for accommodation to be provided for him, objects.

 

 

The parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)

 

 

This all happened, by the way, in 2007.

 

The High Court looked at it in  September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.

 

This, 18 months later, reaches the Court of Appeal.

 

 

The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) ,  and the Court of Appeal decisions giving judicial guidance on s20 cases  Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

 

The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.

 

 

59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):

 

‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’

60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:

 

‘The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

 

72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):

 A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”

73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.

 

 

 

Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.

 That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation.  It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”

 

 

74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.

 

 

75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.

 

 

76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid

 

 

This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.

 

 

 

77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.

 

I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future.  There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance.   The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.

 

This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’

 

Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?

 

 

When I’m sixty-four (bundles)

 

A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and

 

(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and

(B) There were sixty four Court bundles  (and even whittling it down for the appeal there were still 27 just to decide the permission application)

 

Re A and B (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1101.html

 

 

 

The impact of confidentiality on the appeal process

 

  • For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
  • The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
  • I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.

 

That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.

However, the sheer volume involved made that difficult  – doing legal work for nothing is one thing, but reading 64 bundles of evidence  is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)

 

 

 

28th July 2016 hearing

 

  • Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
  • It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
  • In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.

 

9th September 2016 hearing

 

  • The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
  • It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
  • At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.

 

The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.

If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.

 

 

Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(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.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

Re W – no presumption for a child to be brought up by a member of the natural family

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?