Where the Judge refused to assess family members largely because they were in Poland and offered the remarkable sentence of “If you don’t like it, there is always the Court of Appeal”
This was an appeal, arising from the conduct of a hearing. The Judge was asked for several things at that hearing. The mother and father both applied to discharge the Care Order and for more contact. The child SA, asked for DNA testing, saying that she had always had doubts that the father was really her biological father.
It is quite a short judgment, and practically every line of it is remarkable. This is the sort of thing that people who disapprove of the family justice system can rightly point to and say “This is the sort of thing that goes on”
In this case, the appeal was probably the easiest that the Court of Appeal have ever had to deal with – every single aspect of the hearing was wrong and improper. So in this case, the system screwed up royally, but then worked because an appeal put things right. But what we can never know is how many times something a bit like this happens and the advocates don’t appeal. Either they can’t get funding, or their client doesn’t want to, or they take the view that appealing a Judge who approaches things in this way is going to be counter productive in the future (the “don’t poke an angry bear with a stick” argument)
It is a terrible indictment and this case makes sorry reading. The only consolation really is that the child herself was not in Court.
5. The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.
6. Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.
7. Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:
“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”
The Appeal Court, as indicated earlier, had no trouble in deciding that the appeal had to be granted and the case sent back to a different Judge for re-hearing.
9. In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing wasconducted went far beyond anything that could be characterised as robust case management.
10. In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.
and
The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.
I am aware that the newspapers in Liverpool made enquiries about whether there was an investigation or complaint into judicial conduct as a result, and were told that there was not, because no complaint had been received. One does not want to see judicial complaints made each and every time a Judge loses an appeal or gets something wrong, but you might think that an appeal judgment as serious as this might be a trigger for an investigation without a formal complaint being made.
[In case you are ever before a Court and this sort of thing happens, and I very much hope that it never does, there is a formal body who deal with complaints about judicial conduct, as a separate body to the appeal process which deals with the decision made.
Firstly, this was an appeal against the making of a Supervision Order. Those don’t get appealed very often. Secondly, this was an appeal by the Guardian, and the Court sent the case back for re-hearing. Third, the parents in the case agreed when the original Judge made the Supervision Order (which would mean return home) to agree section 20 accommodation pending the appeal – which they didn’t have to – they could have pushed the Local Authority or Guardian into applying for a Stay (meaning that the Supervision Order would not apply pending the appeal)
Also it sort of answers a question posed by one of my commentators – what happens in a case where the Judge sends the child home, and the appeal Court say -re-hearing. Where does the child go pending that re-hearing?
In this case, the child stayed in foster care. That won’t always be the case, but the fact that the Court of Appeal did it here is fairly powerful.
During the hearing, the Judge was unhappy with the assessment conducted by the Local Authority, and also as the Guardian relied on it, of the Guardian’s evidence as well. That posed something of a problem, since an earlier hearing where the parents had applied for an independent assessment had been refused. By a different Judge, but the Court having ruled that an independent assessment wasn’t necessary was faced at final hearing where the assessments could be properly scrutinised and tested with assessments that were not satisfactory.
The detail of why the Judge felt the FAST assessment that informed the social work was flawed is not really the subject of this piece – it is all there in the judgment if you are interested. Here’s a flavour of it
33. The judge found himself in an invidious situation. The District Judge had properly refused the application for an independent social worker report and had attempted to put in place through her careful case management order, provisions to rectify the deficits in the assessment process. Unhappily, the local authority failed to comply with the order in terms of arranging for a family group conference, an important event in order to ascertain what support would be available in the event that there was rehabilitation and which would have given the guardian an opportunity to meet the extended family who would have to form part of a successful rehabilitation programme.
34. It was also a serious deficit that, despite indicating to the contrary in the assessment, the social workers had not in fact read Dr Dowd’s report and so did not have the advantage of putting what they were seeing and hearing from the parents in context against the backdrop of the psychological assessment.
35. The local authority’s case in closing was that, notwithstanding the criticisms of the defects in the FAST assessment, the conclusion was not undermined nor was it rendered unsafe to rely upon its conclusion. The judge said in his judgment in terms, “I respectfully disagree”.
These were the judicial conclusions
37. The judge, having dismissed all the evidence going directly to the parenting assessment, moved on to analyse over five paragraphs, a number of serious concerns he had about the father, the headlines of which were: (1) his failure to take up a parenting course; (2) his failure to attend contact; (3) his decision to go to Pakistan at a critical time in December 2013; (4) his failure to inform his family of the birth of [A]; (5) his failure to do anything about the state of the home where his child was living, which was revealed in the photographs as “disgusting”. These issues, the judge said, brought into question the father’s motivation; a key issue, it will be recollected, in Dr Dowd’s view in determining if the father could care for the children.
38. How then did the judge conduct the welfare analysis which led him to conclude that notwithstanding those findings he was satisfied that rehabilitation to the father and mother was in the best interests of the children. The judge said in relation to his conclusion:
i. “In my overall view too little weight has been given by the local authority and the guardian to the role that he can play in the future care of the children. I am satisfied that his family now do know of his relationship … and of the birth of [A]. When asked in evidence about his parents’ and family’s acceptance of [A], he said as they love him, so they love [A]. I accept that. It is hard not to.”
39. The judge went on in the following paragraph:
i. “When I come to look at [the father’s] evidence overall, even with the adverse findings I have made, I am satisfied that he intends to be available to parent his child and also [L]. He certainly has the capacity to do so, as determined by Dr Dowd …
ii. Further, in my assessment [the father] has shown that he has the motivation to change. It may be late in the day, but I accept that that is now the position. He has embarked on a parenting course. He has the ability to learn from that and to put that learning into practice.”
40. The judge then referred to the fact that the father’s legal status in this country is tenuous. But concludes by saying:
i. “Overall, I find that [the father] can be a significant factor in parenting [A] and [L] together with the mother.”
41. The judge noted the efforts that the mother had undoubtedly made in improving the state of the house and in embarking on a course of cognitive behavioural therapy.
42. Finally, the judge concluded that:
i. “The local authority’s case simply does not reach the point that nothing else will do. … I have balanced the harm which [L] and [A] have suffered or are likely to suffer against the capacity of the mother and [father] to meet their needs, with the likely effect upon both [A] and [L] of their being removed permanently from the care of their parents. The FAST assessment was inadequate. The social worker and the guardian relied upon it. This has produced an analysis by them of the case that, in my judgment, is not supported by the evidence that I have found.”
43. The judge made the findings summarised above and expressed his intention to make a supervision order allowing for the return of the children to the care of the mother and father.
44. After the judgment was delivered the local authority, supported by the guardian, sought permission to appeal. Final orders were not made at that stage and the matter was adjourned to enable an alternative care plan to be prepared for the rehabilitation of the children, which instruction was faithfully carried out by the local authority.
45. The matter came on before the judge again on 27 June 2014, when final supervision orders were made. An agreement was made, however, for the children to remain in their current placements pursuant to section 20 of the Children Act 1989 pending the hearing of appeal. At that hearing the judge quite properly asked those representing the local authority and the guardian if they wished him to clarify any particular issues. They declined his invitation.
Let’s take that last point first – there’s substantial authority that it is the responsibility of an advocate to draw the Judge’s attention to apparent flaws or deficiencies in the judgment to give the Court the chance to correct those, and that is supposed to be a prelude to appeal. If the Court offers that opportunity and the advocates don’t take it, are they precluded from issuing an appeal, or do they get a second bite of the cherry? This is what the Court of Appeal say:-
64. Counsel referred the court to a number of authorities relating to the course to be adopted where it is believed by the parties that there has been insufficient, reasoning or analysis in a judgment. In particular the matter was considered by the Court of Appeal in Re A & L (Appeal Fact Finding) [2011] EWCA Civ 1205, [2012] 1 FLR 134. Munby LJ (as he then was) emphasised the responsibility of the advocate to draw to the court’s attention any material omissions in the judgment and the mirror obligation upon a judge to consider whether his judgment is defective for lack of reasons when permission to appeal is sought.
65. It should be noted that Munby LJ did not suggest that failure to comply with such obligations would lead to the dismissal of an appeal. Clearly, no matter how frustrated a court may be by a failure on the part of advocates to seek clarification at the proper time, the sanction for such an omission cannot be such as would compromise the welfare of the child in issue.
{I wonder, idly, whether a Court of Appeal containing the author of those remarks in Re A and L might have decided this differently – we are not likely to ever know now}
So advocates should draw the attention of the Court to appeal points to give opportunity for the Judge to remedy them, but if they don’t, that is not a bar to the appeal. It probably isn’t the smartest move to irritate the Court of Appeal before you even start, but imagining that you were either struck dumb in the final hearing or someone else did it and said nothing, this is now the authority to produce to persuade the Court of Appeal that you aren’t sunk before you set off.
The Court of Appeal ultimately felt that the Judge was wrong to have dealt with the case in the way he did – they were careful not to say that the final outcome was wrong, but the route taken was not right. The case had to be sent back for re-hearing
56. In my judgment, the judge failed to carry out such a welfare evaluation. There is no analysis of risk to be found in the judgment. On the face of it, even with the positives he found in relation to the mother’s changes and the indications of same late change by the father, when the serious criticisms he had made of the father which related directly to the key issues of the father’s motivation, were factored in it is hard to see how the judge reached a decision that the children’s welfare would be protected by only a supervision order, and I further note that.
57. In any event, I am satisfied that the judge, having discounted the welfare evidence filed, was, as was recognised at trial by counsel, left without essential evidence to enable him to carry out the welfare evaluation. Without parenting assessment evidence in the broadest sense the judge was left without the material he needed with which to compare the benefits and deficiency of each realistic option; in this case, so far as [L] was concerned, this meant living with her grandparents or moving to her mother and stepfather; and, as far as [A] was concerned, the last resort option of adoption or alternatively rehabilitation home to his natural parents.
58. By ground 3 of the grounds of appeal, the children’s guardian argues that the judge failed adequately to consider the effect of any order upon [L]. [L], it is quite clear, was not considered separately from [A] by the judge. [L]’s position needed separate analysis and consideration given that she has never lived with the father, whom she says she does not really know, and that queries were raised about the relationship between the father and [L] which the guardian felt needed further assessment. Specific consideration was also needed as to whether or not [L] and [A] should have separate placements. The local authority and guardian’s care plan having provided, as I have already indicated, for adoption for [A], and for [L] to remain within the family.
59. On behalf of the guardian, it is rightly observed that rehabilitation for [L] was complicated. She would leave her grandparents, where she has now lived for over a year, and return not to her mother and three siblings but to a household without her elder brothers and instead a “new” baby brother and a stepfather she barely knows. Clearly, the father’s ability to build a positive relationship with [L] is the key to a successful rehabilitation plan.
60. [L] had suffered a long period of serious neglect in the care of her mother. If she was returned to her mother’s home, a position which can only be contemplated with the support of the father, the court needed to be clear that this 24 year old man with no previous parenting experience was willing and able to care for [L] as well as his own child. His lack of attendance at contact with [L] and criticism of his attitude towards her at contact was not reassuring upon that point, nor was the guardian’s observation that, whilst she was clear that the father loves his son, she was less convinced “at his relationship on feelings towards [L]”.
61. The case is an example of the difficulties which can result from the preparation of inadequate assessments, in this case compounded, through no fault of her own, by the late appointment of the children’s guardian. Whilst delay is always to be depreciated, the judge having identified the deficits in the assessments was wrong in failing to accede to the practical and realistic submission of counsel for the mother to adjourn the matter to enable an independent social worker report to consider the key issues of the motivation of the father and his ability to accept the considerable responsibility necessary for him to be able to support the mother. Without the father’s practical and emotional support the mother would be unable to care for either of her children, and and the court needed proper evidence as to, his ability to provide her with security and stability and to be an antidote to the mother’s difficulties in maintaining a household and environment that was safe and healthy for either of the children.
62. In her written submissions in support of the original application for the appointment of an independent social worker, counsel quoted from Re NL (A Child) (Appeal: Interim Care Order: Facts And Reasons), setting out Pauffley J’s observations that, “Justice must never be sacrificed upon the altar of speed”, in support of her submission that on the facts of this case the extension of proceedings beyond 26 weeks would be both reasonable and necessary.
63. It is trite law to say that delay is inimitable to the welfare of a child but, as Pauffley J’s noted, the family justice reforms are intended to promote the welfare of the children and not to render those very children more vulnerable by premature decisions being made in order to achieve the statutory timetable.
If after hearing the evidence, the Court felt that the assessments before the Court were not satisfactory to make a proper decision, the approach was to consider ordering fresh assessments and not to feel hamstrung by the 26 week regime.
I suspect that those who represent parents might be feeling that this is a Local Authority getting two bites of the cherry – they had the chance to prove their case, the burden is on them to do so and they failed. They get a second attempt to do so, rather than the parents getting their child back because the Local Authority had not proved to the Judge’s satisfaction that the concerns warranted permanent separation. It feels a little like that to me too. The parents have lost out here because the judgment wasn’t thorough enough to back up that decision. It could have been made appeal proof, but it wasn’t. (Actually, maybe it is three bites of the cherry, given that they had their chance to speak up after the judgment about what was wrong with it, and didn’t)
There’s a nice exchange about contact notes – I find that some Judges find evidential purpose and value in contact notes, some tolerate them, some grudgingly tolerate them and some consider that they show little if anything of evidential value and disproportionate time is spent on them. It rather depends on your Judge. Surprisingly little guidance from senior Courts about what to make of them (one might think that the fact that the Legal Aid Agency now refuse to pay counsel to read them speaks volumes – they got that tip from somewhere)
If you are an assessor, these words will be music to your ears (unless you LIKE reading contact notes, in which case I (a) feel sorry for you and (b) am worried that you are also reading this blog and whether it compares favourably or unfavourably to the joy you find in reading contact notes)
32. Counsel for the mother lays heavy emphasis on the contact notes as an assessment tool for the judge but it is important that the value of contact notes are not overstated. For my part, no matter what legitimate criticisms are made of the FAST assessment, it should not be expected that the assessors should in every case, read all of the voluminous contact notes; in this case made 5 days a week over many months. The essential flavour can often, although not always, be obtained from reading a representative sample and by the observation of contact by the assessors. Contact notes do, of course, have a value and can highlight both good and bad aspects of parenting. In this case, they show that the mother has been assiduous in attending contact and that the quality of that contact is good. What the contact notes cannot do, even if every single visit is closely analysed, is demonstrate whether the mother can make and sustain change day in day out, year in year out in such a way that history does not repeat itself. Observation of contact could have given some increased insight into the relationship between the parents and of the father’s progress as a new father in handling his baby. Unfortunately, due to his inconsistent attendance, that information was not available.
My last point is really dealt with en passant by the Court of Appeal, but I think it is quite significant. The father in this case got free legal representation to fight his case in the original care proceedings – he won (I know, no such thing as winners and losers, yadda yadda yadda*, but he persuaded a Court to return the child). Yet in the Appeal hearing, which was just as important for him, he had no representation and had to appear in person. The mother got legal aid and was represented, but why not both? I know, we are saving public money and we can do it with just one parent being represented. But was this really fair? I don’t think so.
68. The father today, as I have already indicated, is unrepresented and as a lay man it is inevitably difficult for him fully to understand the nuances of the hearing or the judgment. I should make it clear for both his benefit and also for the mother that this court is not on any level making a determination as to whether [L] and [A] or either of them should or should not be rehabilitated to their care. What the court is saying is that before such a decision can be made it needs the further assessment of the parents, such an assessment will no doubt cover the fact that the house is now in good order and that the parents have been to parenting classes as well as aiming to achieve a better understanding of the father’s family and the role they would play in [A]’s life if he goes home. The matter will go to a different judge for the case to be heard again in the light of a newly commissioned independent social worker’s report and any additional evidence the designated family judge may order to be filed. Such a report will be conducted against the circumstances as they are now, as opposed to the circumstances as they were at the trial, and will be filed in accordance with the judge’s broad case management powers.
The mother was appealing a refusal to grant her leave to apply to revoke a Placement Order (i.e to get her child back). She was in person in the Court of Appeal (and did a very good job) and won her appeal.
There are few big points from this appeal which have wider application.
1. Change doesn’t have to be recent
(I think what the Court of Appeal say here rather destroys Mostyn J’s declaration that change has to be ‘unexpected’ because they are explicit that one shouldn’t read words into the statute that aren’t there)
I do not accept Mr Tughan’s submission that the nature and degree of the change of circumstances which a parent does successfully establish, is demoted by it being a recent change. This does add gloss to the words of the statute and should be resisted
2. Change doesn’t have to be change in the parent – it can be change in the life of the child, or in the life of the child’s carers.
[This one interests me, because as far as I know, Mrs Suesspicious Minds was the first counsel to persuade a Court of that, so it is nice to see that she was right – as usual]
The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.
3. Take care in using a note of judgment as if it were a transcript
In this case, the Care Order and Placement Order had been made by a District Judge, and the leave to oppose hearing was heard by a Circuit Judge. The CJ had been given counsel’s note of the hearing / judgment, but read it into the judgment on leave to oppose as though quoting the District Judge directly.
The only document that assists is Counsel’s “note of final hearing” prepared by Mr Hepher on 20 August 2012 for his Instructing Solicitor. It has not been approved by the DDJ Johns.
Contrary to what HHJ Levy said in her judgment, the note does not pretend to be a note of the judgment; rather it is the subjective assessment of the hearing and its outcome, giving a potted version of the judge’s conclusions. Counsel who appeared for the Local Authority could have no idea or intention that it would be referred to in any future proceedings or appellate jurisdiction. However, HHJ Levy placed reliance upon it and, it seems to me, elevated Counsel’s written opinion that “the evidence did not go well for [the mother]. Shebecame upset and gave loud, aggressive and frequent inconsistent and confrontational answers when challenged” into findings made by the first instance judge and thereafter cited Counsel’s summary of a part of the judgment in quotation marks, giving the appearance that the same were spoken by the DDJ Johns.
The fact of its quotation by HHJ Levy leads me to conclude that it was instrumental in her decision and I therefore refer to it in full. HHJ Levy said that “[t]he judge had concluded by summing up the mother as: ‘…angry, resentful and accusatory of professionals…blaming of others, was unable to explain the impact of domestic violence and undesirability of drug use, and had a casual disregard to telling the truth. She had no insight into the magnitude of the risks the father might pose, nor the impact of her own behaviour. She was not able to sustain motivation for any meaningful change”.
…Quite apart from the issues raised in the grounds of appeal, I would express my great concern at other aspects of the procedure that was adopted at first instance and which are capable of further infecting the outcome. That is, HHJ Levy was disadvantaged in the absence of DDJ John’s judgment and “agreed threshold criteria” and was wrong to accept counsel’s unapproved “note of the hearing” as a sufficient substitute, even though I am sure she was well intentioned in seeking to avoid delay. She could not possibly establish the true base line in the absence of the “agreed threshold criteria” document, which itself recorded some issues of fact and differing interpretation of others, without reconstructing the evidence that had been available in the court below. In doing so she appeared to rely entirely upon the reports submitted by the social worker and guardian.
4. You need to be quite careful about ruling that a parent had not satisfied the first limb of the two stage test (has there been a change in circumstances?)
The Court of Appeal here sent the case back for re-hearing, but were very plain that their view was that the first limb had been crossed and quite comfortably.
5. Fresh evidence
The Local Authority had brought to the Court of Appeal a statement that gave information about family finding – in effect, providing evidence that an adoptive placement was on the cards. The Court of Appeal deprecated this practice. This was really a request to introduce fresh evidence to the appeal, and if so, a proper application needed to be made, with all of the Ladd v Marshall principles argued (it is REALLY hard to get fresh evidence in on appeal, other than in criminal proceedings where the fresh evidence is something like an alibi, or CCTV footage or some sort of CSI test which would undermine the conviction)
Shortly before coming into court, a statement prepared by Ms Faith Connell, J’s social worker, unsigned but dated 9 January, 2015 was sent through uninvited. There is no application to admit fresh evidence. I am told by Mr Tughan that it is intended to update the court on ‘family finding’ for J. This practice is becoming increasingly common and I think it entirely inappropriate. If the statement contains fresh evidence which is pertinent to the appeal then leave should be sought in accordance with normal procedure to admit it. If it does not, it may appear as an attempt to influence the outcome of the appeal. Mr Tughan assures me that that is not intended,but that it was submitted with a view to assisting the court if it wished to substitute its own order for that of the court below.
As it is, this is not a court of first instance and is not in a position to determine the disputed factual issues raised in the mother’s application before HHJ Levy, let alone fresh facts on the unilateral presentation of what may be challenged evidence and opinion going to inform the discretion stage. I have refused to read the statement in those circumstances and particularly since the mother is unrepresented.
6. You can only ‘shore up’ a judgment so far
In discussion, Mr Tughan was obliged to concede that he was attempting to “shore up” the judgment of HHJ Levy. He accepted the absence of any findings in the judgment that were directly relevant to the adverse findings apparently made against the mother by DDJ Johns and upon which HHJ Levy relied. He argued that some issues that were recorded in the judgment had been ‘resolved’ during the course of the proceedings – entirely, I observe, in favour of the mother’s contentions – and that it was unnecessary to make certain other findings, including whether the mother’s relationship with her previous partner had ended, the extent if any of her drug use, and whether she had threatened the current social worker with violence. He accepted that the Court would “struggle to piece together” HHJ Levy’s thought processes, but that they could be “pieced together” when analysed in the round. He argued that the bar had been set at a high level by reason of the findings made in the original care proceedings and that the self reported changes by a mother, whose credibility had been doubted in the past and, implicitly I think he was suggesting, was in any event so emotionally compromised in relation to an objective consideration of J’s best interests, had inevitably led the judge to conclude that she still had a “long way to go”.
The mother was of course appealing the judgment that was made, not the shored up version that counsel for the Local Authority was skilfully presenting. She won her case, and that was the right decision. Nobody knows how the re-hearing will go.
6. Threshold post Re A
The Court of Appeal here accepted that the threshold were ‘more than satisfied’ and that they had no doubt about that.
Let’s have a look at the threshold then.
A document headed “Agreed Threshold Criteria – 17.7.12” gives some indication of the circumstances of J’s removal. In summary, J’s father has previous convictions for serious drugs and violence. In June 2009, the mother attempted to prevent his arrest for the offence of armed robbery. The father was subsequently jailed. The mother commenced a new relationship. Her new partner also had previous convictions and was a serial offender. Regrettably he was violent to the mother. She continued with the relationship and was said to prioritise her relationship with her partner over her own and J’s safety. The mother disagreed but there is objective evidence that she found it difficult to separate from her partner, refusing an injunction and visiting him in prison whilst he was serving a sentence for assaulting her. The mother was said to continue to “minimise and excuse the extent and impact of the domestic violence and conflict to which J had been exposed”. She herself smoked cannabis but denied that she had used class A drugs. It is clear that she was not co-operative with social services and would routinely deceive them about her home circumstances.
Reading this document I have no doubt that the so called threshold criteria imposed by section 31 of the Children’s Act 1989 were more than satisfied.
A lot of this looks like the sort of thing that the President threw out on its ear last week. This isn’t a case where the mother herself posed a risk. At best, or worst, her partner might have. But he seemed to be in prison. Cannabis – gone. Not co-operative with social services – gone. Assisting father three years earlier to resist arrest – what’s the risk to the child? gone. . Violence from former partner – well, the President seemed to be suggesting that there are people who have had dv in their relationships who would not cross threshold – it would depend on the extent and nature of it. Minimising dv – gone. Visiting former partner in prison – well, if he wasn’t established to be a risk of harm to the child, so be it.
Too early to say whether the Court of Appeal are going to take a different view to the President on Re A, but if you apply the Re A principles the threshold here is either not crossed or it just limps over the line. Yet the Court of Appeal consider that there is no doubt that it was more than satisfied. Hmmm.
In this case, the Court of Appeal were dealing with an appeal from a husband relating to divorce proceedings about a Judge’s refusal to order the police to provide him with information / a statement. There had been a complaint from the wife (or the wife’s new partner, hence the husband’s interest) about an allegation of criminal damage to a Sky tv satellite dish.
The husband had done a lot of legal research, but was sadly relying on the Civil Procedure Rules and a case called Durham County Council v Dunn [2012] EWCA Civ 1654 which relates to the duties of disclosure and inspection owed by one party in litigation to the other. Neither were really relevant in this case, which was Family Procedure Rules and relating to an order for disclosure against a third party. I personally think that the husband had made a pretty decent fist of assembling his case, he’d just started from the wrong assumptions.
The Court of Appeal refused the appeal, but this is the relevant bit and why it is worth reporting.
The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.
And
I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented. Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistanceof counsel that it should have and the court has no other legal assistance available to it.
It is quite easy to read this as a kicking to Chris[tian] Gray-ling and the devillish torments he has assembled for justice in his Red Room (and there’s an image you will be stuck with for the rest of the day, sorry), but I’m not quite sure that it is.
We don’t specifically get told what the husband does for a living, but we do know that there is a matrimonial home of a size for a family of four (husband, wife, two kids) and that it is in the Bromley area (because that was the original Court), so one might hazard a guess that to obtain and sustain a mortgage both parties would probably fall outside of the income limits for legal aid, even before the reforms. The husband is clearly bright and capable – one might criticise him for focussing his intellect in the wrong direction rather than moving on, but that’s by the by.
If I were staking money on it, it would be that this husband would not have qualified for free legal advice and representation even before Chris Grayling got his hands on the legal reins and made his changes of course.
If this was supposed to be an economy though, it isn’t. The Legal Aid Agency might have saved a few thousand in legal fees for someone to research and advise the husband (and they’d have advised against an appeal) but the taxpayer overall has lost out because three very senior Judges had to spend valuable time researching and working out the proper basis for the appeal and whether or not it should be granted.
The case involved a dad who wouldn’t give a DNA sample, but was in prison for murder. The police had two DNA samples – a DNA sample of the perpetrators blood from the crime scene and the one dad gave that matched it. They were prevented by law in giving the second one to the Court to be used as a paternity test sample. The President decided that they weren’t prevented in law in giving the first sample (which we all know is a match and is dad’s DNA)
I actually thought it was a very clever and intricate solution and one that won’t really cause problems for later cases.
Nonetheless, it was appealed, and the Court of Appeal over-ruled the President.
As a result, any samples held by the police ought to only be used for the purposes of criminal law enforcement.
If you were hoping for the President to get a come-uppance, this judgment is not it. The closest they come to a criticism is this bit:-
35. Parliament cannot, when replacing Part V of PACE in 2012, have intended that Part II DNA profiles could be used outside the sphere of criminal law enforcement but that Part V DNA data could not be so used. That would be arbitrary and would make no sense. The court should be very slow to impute to Parliament an intention to legislate so as to produce results which are arbitrary and irrational.
In order to avoid such absurdity and to reflect Parliament’s clear intention in POFA to legislate to remove the incompatibility between English law and the requirements of the Convention, I consider that section 22 should be construed in a way which is consistent with the scheme of Part V. That is to say, section 22 should be construed as meaning that, if the police consider that it is necessary to retain Part II DNA material for criminal law enforcement purposes, they may not use it for any other purpose
Given that the Court of Appeal didn’t like the President’s somewhat elastic use of statutory construction (stretch it as far as you can unless it actually snaps) he is perhaps fortunate that all of the parties in Re X (a child: Surrogacy) 2014 liked his decision (and hence weren’t going to appeal it), because that one for me went beyond snapping point.
When the President decided that a valid interpretation of THIS piece of statute
“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”
was
“unless the Court is okay with it”
The President doesn’t lose many though – this one and Cheshire West are the only ones that I can remember. (And I have some sympathy for him on this one, I think it was a child-focussed attempt to resolve a problem)
As far as I know, Re M (A Child) 2014 is the first time the Court of Appeal have dealt with a case involving equal parenting time since the Children and Families Act with its controversial clause came into being.
This case has some other remarkable features, but just focussing on what the Court of Appeal say about equal parenting time – that being the order that the trial Judge made.
There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.
If you are one of the campaign groups representing fathers, the Court of Appeal saying that a 50-50 split will be a “rare order” “only to be contemplated where there is confidence it will not work to the disadvantage of the child” is not something you wanted to hear. So all parents are equal, but some are more equal than others.
Anyway, the meat of this appeal was more on the issue of whether a Court can impose a condition on WHERE a parent will live when making an order that says that the child will live with them (residence order, in old money)
In this case, the boy is 5 ½ .
The circumstances as they were before the judge was that for some time the mother had set up home with W in Newcastle whereas the father lived in London with his two older children, half siblings of W, and it was impracticable to consider the father moving from London, given his commitments there and, in particular, his longstanding employment.
There were a series of findings about the father’s conduct that had led the mother to move out of the family home in London and move to Newcastle, the atmosphere in the family home having become ‘toxic’
So far as allegations that the mother made against the father, the judge made a greater number of findings. They all, in one aspect or another, relate to the degree of control that the father sought to assert over the family as a whole, but in particular over the mother.
One aspect that understandably had prominence was the unfortunate fact that the father was confirmed, as time went on, to be HIV positive. The question arose as to when he knew or must have known that that was the case and whether he told the mother promptly about that and, if not, why not. In short terms, the judge found that there did come a time when the father will have known that it was highly likely that he was HIV positive, but it was not for some year or more after that time that he told the mother about this, despite some active continuing sexual contact between them. The judge describes her finding in this regard as: “Appalling behaviour on behalf of the father. The mother was understandably terrified with this news.” The judge, in short, found the mother’s allegation proved.
The mother’s case was that the boy should live with her in Newcastle and spend some time with his father.
Father was saying that the boy should live with him in London and spend some time with his mother.
The Judge made an order which seemed utterly bizarre on the face of it, particularly given the findings made, which was that the boy would live with father in London and IF mother moved to London, there would then be a 50-50 split of time.
The judge, in the event, made an order that provided for W to be returned from Newcastle to live with his father in London and provided in the interim for arrangements for the mother to have contact. The order further provided that if the mother moved back to the London area herself, she would have substantial contact with her son. Indeed, we have seen a draft order, which counsel have explained to us is more than simply a suggestion of an order as a result of negotiation between counsel, but arose as a result of direct invention from the judge at two or three hearings up to and including 8 July 2014. The basis of the order is that if the mother moves to London, W: “shall live with his father and mother with the principle of equal shared time to include half of all school holidays.” In the meantime, or if the mother does not move to London, the provision was for holidays to be split into equal shares. For each alternate fortnight, so that is once every four weeks, W would travel with the father up to Newcastle to spend most of Saturday and half of Sunday with the mother, and, on another fortnight on each four week cycle, the mother would travel to London to have a similar amount of time with him
The mother appealed, on the basis that (a) given the findings and facts a decision to split the time equally was perverse (b) the evidence was that mother did not want to move back to London and would have considerable difficulty in doing so and (c) this stipulation amounted to attaching a condition to residence – something which is only to be done in exceptional circumstances which this was not.
Let us be fair to the Judge – this ‘third way’ compromise had been suggested by the CAFCASS officer.
“42.The recommendation of Mr Power is that W should be returned to the father and it is the hope from Mr Power that the mother will feel able to relocate back to London and therefore there can be come shared care arrangement. The mother says that it is quite impractical; she does not have a job, she does not have income, she does not know where she could afford to live and it is of note that neither party have initiated court proceedings so there are no financial provision proceedings in being. So at the moment the position is that the mother has no known resources such that she can obtain from her family or from by finding a job. She says that if she has to come back to London she does not know that she can find accommodation. She looked into the possibility of finding accommodation and a refuge is one possibility but the problem about that is that at the time she requested alternative accommodation she was told the only then available refuge was in Manchester. 43. Mr Power was of the view that, biding her time while she remains in Newcastle, that a London refuge would eventually be available to a suitable place and that in his experience people are satisfactorily re‑housed, usually within a period of six months, and that whereas living in a refuge is not something one would necessarily wish to do it was perfectly adequate if W were to live with the mother in the refuge. It is fair to say that, looking at the large amount of documentation produced for this hearing, that the mother in the past has been able to potentially find herself accommodation; at one stage she has through her brother I think paid for four months worth of rent in a flat if the father would co‑operate to allow for some further finance of that in the future but the father refused so she has looked into the possibility and obtained money from her brother. Her brother, also I think, is in medicine or science and lives on the continent and he has helped her financially in the past.”
The Court of Appeal give me a lovely new phrase to use – referring to key passages of the judgment, they say that these are the “engine room” of the judgment. Stealing that!
In paragraph 46, the judge, looking at W’s best interests, said this: “46.It is vital for him that he should have the continued love and care from his mother in the future as he has had in the past. 47. So looking at those two options, those are really the only two options. Either W stays in Newcastle with the mother under the regime she puts forward or some other workable contact arrangement, what these days are child arrangement and sharing of care, or she comes down to London and she with the father, together, care for W. Mr Power, when asked about what he had in mind with a shared care arrangement, said that he would hope that the mother would have at least half the care of W and possibly more than half the care of W depending upon her commitments, but he could not be more definite about the arrangements because at the moment the plans are inchoate.
The father’s proposal if W was returned to London would be that W would see his mother very little indeed. Having heard the evidence he said that he would support what Mr Power recommended. Therefore if the mother can remove herself back to London then she should be able to have a substantial part of the care of W depending upon where in London she is able to live. Of course the court cannot force the mother to move back to London; it will have to be a decision for to make but looking at all the options. The court must make the decision which is the least destructive of family life, must make no order unless an order is necessary and must make a proportionate order. It is a difficult balancing exercise but the balancing exercise must be carried out in what is in this little boy’s best interest. I have no doubt it would be in the mother’s best interest that she should remain in Newcastle. She is happy there and she has a very nice home and there are suitable arrangements for W but this case sadly cannot be decided upon what is in the mother’s best interests; it has to be decided on what is in W’s best interest. I am well aware that she in a difficult predicament because of at the moment she has no income, she has no job and her immigration status is questionable but she is, I find, a resourceful woman and she has been able to achieve that which she wanted, within reason, in her circumstances whilst she was living with the father. Although I have found father was controlling, nevertheless she did go out, she went to courses, she had a job, she left when she chose to to take W to see family or friends. She says she has no friends now but she obtained friends over Facebook and in the past she went to stay with one friend, S, and at one stage she was able to be friendly with her brother’s fiancée but that too has come to an end. So she is a woman who is capable of making friends, who is capable of arranging life as best she may even when in that toxic atmosphere. Therefore I am satisfied that if she decides she wants to move back to London then she will be able to find one way or another that will enable her to do so. As I say, at the moment, there are no financial proceedings so I know not how they may work out if such applications were made; that is not for this court and it is certainly not for this court today.
Therefore, carrying out that balancing exercise and looking at what is in the best interests of W, I have come to the conclusion that it is in the best interest of W that he now should be returned to the father’s home and that he should live there under a shared care arrangement; a child arrangement where, in principle, the mother should have a substantial part of the care of W but that of course cannot be put in place until and unless the mother is willing and able to move back to London. If she is not, and in the meantime whilst she remains in Newcastle, sensible arrangements will need to be made so that she can see W and I will leave the parties to see if they can, by agreement, work out a sensible regime. There needs to be a date when W is moved back here; clearly he needs to be back in time for the start of school in September and consideration needs to be given to what happens in the meantime and no doubt arrangements will have to be made but in my judgment, for this little boy, the familiarity of school and the church that he has been going to is, I agree with Mr Power, what is the most stable part of W’s life in the light of the fact that his parents are separated. Therefore, in my judgment, W should return to live with the father. The order should reflect the fact that, in principle, the mother should have part of the care of W when and if she is able to come and live in the proximity to the father and to W’s school and until such time as that happens, what used to be described as contact arrangements will have to be worked out.”
Those paragraphs are the engine room of the judge’s judgment and have been the focus of the appeal before us
So, the Court of Appeal had to consider whether what the Judge had done did amount to attaching a condition on residence and whether that was justified.
The law on that really emerges from Re E (Residence : Imposition of Conditions) 1997 2 FLR 638 – “where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence”
The Court do have the legal power to make conditions under s11(7), but unless there are exceptional circumstances, they ought to have decided which of the two competing plans (with mum in Newcastle or with dad in London) was the right plan, rather than imposing an order which effectively compelled mother to move to London against her wishes.
In my view, the judge should have made a clear choice, hard though it would have been, between W remaining living in the care of the mother in Newcastle or living in the care of the father in London and she should not have endorsed the halfway house arrangement that she did, which, for the reasons I have given, was, first of all, in my view, impermissible as a back door condition, but secondly, and perhaps more importantly, was simply not justified on the evidence and hard to understand as a concept that would be compatible with the child’s welfare. For those reasons, I would allow the appeal and set aside the judge’s order.
I know… it is like autumn 2013 but in reverse. It would be nice, once in a while if the Court of Appeal would grant some appeals and refuse others, rather than having six months of granting them all and then six months of refusing them all.
At the moment, these appeals are like turning up to play 5-a-side football with your mates, and Christiano Ronaldo turns up as one of the ten.
It isn’t that hard to predict the outcome and if you are on the other side, it is a lot of hard work for not much reward. Even worse if you turn up thinking he’s going to be on your team, only to find out that the rules changed to put him on the other side whilst you were travelling to the match.
Nothing much in this one about the legal test and the ongoing debate about whether when the Supreme Court and Court of Appeal say “You’ve got to do A, B, C and D if you are going to make a Placement Order” that amounts to a change in law or not.
But some things of interest.
The difficulty for a real human being (we lawyers call them “lay persons”, but “person” is also an acceptable term to use for a person) in understanding the appeal process and what to do, what form to fill out, where to send papers, who to send them to
This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.
The Court of Appeal explain that in this case, the father had thought he could appeal to the County Court, and the County Court had also thought that for quite a while because the Recorder who heard the case had also been sitting at that Court as a District Judge. Their explanation for this is so complicated, I had to read it three times to grasp it, so I feel for all involved.
Then the age old difficulty of getting a transcript
Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.
The County Court actually wrote a letter of apology to the father in this case for all of the things that had gone wrong. That’s a fairly rare occurance (in twenty years of practice, I’ve never heard of the Court apologising to anyone)
As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.
In this case, the appeal was based on the judgment not being sufficiently clear about what basis various options had been discounted to arrive at adoption – one might think from reading Re B-S that when they said THIS
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
“the judge … failed to carry out a proper balancing exercise in orderto determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”
She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”
42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.
that they meant that a judgment ought to grapple with the factors at play and give proper focussed attention for the specifics.
The Court of Appeal had been taking a very hard line on this, but seem to have softened their approach and are prepared to look at the totality of the judgment and the evidence heard by the Judge (which was not the case in the low-watermark case where the parents had both been in prison at the time of the Placement Order and the appeal was granted)
One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or herArticle 6 rights having been compromised.
At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:
i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.
iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S.The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J [2001] 2 FCR 44)
iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.
v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditionsnecessary for the making of a care order were undoubtedly made out.
vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”
vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Oncethe court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.
Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination alsorespected theConvention rights of all the parties
That’s the Court of Appeal case that we’ve been talking about all week. It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.
I know not all of you read Family Law, so here is the link.
In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”. BUT Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies. In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.
and quite a bit of that media attention missed the point really. [Which is fair enough, because the point was obscure and technical, and a far better story for selling newspapers is whether we are going to send mothers to prison for having a glass of wine during pregnancy]
The case was not about whether mothers should be prosecuted for drinking whilst pregnant, but whether technically they COULD be, which would allow for children who suffered damage (Foetal Alcohol Syndrome) to receive compensation from the Criminal Injuries Compensation Authority.
The Criminal Injuries Compensation Authority was set up by Government to make payments to people who are the innocent victims of crime.
“from people who have been physically or mentally injured because they were the innocent victim of a violent crime…”.
A person does not have to show that the perpetrator of that crime was later convicted of the offence, it is sufficient to show that (a)there was a violent crime and (b) they were physically or mentally injured.
The case was also not about whether or not it is a bad thing for mothers to drink during pregnancy. The Court did not hear arguments about whether consumption of alcohol causes harm to foetuses and whether that harm continues after the baby is born; that was a point that was accepted by all of the parties.
For a while, the Criminal Injuries Compensation Authority (CICA) were paying some claims on behalf of children who had Foetal Alcohol Syndrome due to their mother drinking during pregnancy, but then stopped.
CB’s case was brought as a test case for around 80 similar cases where children were possibly going to receive compensation if the Court of Appeal found that the consumption of alcohol in pregnancy was capable of being a crime.
If it isn’t capable of being a crime, no CICA compensation.
So, firstly, what crime are we talking about?
s23 of the Offences Against the Persons Act 1861. This provides:
“Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years”
As with any criminal offence, there are a lot of ingredients – unlawful administration, of something, to any other person that something being noxious, and the administration causing grievous bodily harm to that person
We could make this very complicated, but I’ll try instead to make it very simple.
If a mother takes her six year old child, and makes him drink a bottle of gin and he suffers as a result, liver damage or kidney failure, or even if he is just hospitalised, the offence under s23 is made out. The alcohol is a noxious thing, the administering is unlawful and grievous bodily harm was suffered.
But with a child in the womb, it was uncertain whether the offence under s23 was capable of being committed.
And that is a result of this bit in the statute “any other person” – at the time the noxious thing was administered, was the victim a person?
That gets us into huge theological and pro-choice v pro-life debate; some people will feel very strongly that a foetus is a person, some will feel very strongly that until birth the foetus is not a person, some might feel that it depends on the age of the foetus, still others will feel that it depends if the foetus has reached a stage where it would be capable of being born alive.
But we can cut through all of that (fascinating and controversial as it is), because the Courts have given decisions on the legal position before.
And as the decision was from the House of Lords, it is powerful authority
In Attorney General’s Reference (No 3 of 1994) [1998] A.C. 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child’s death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed.
Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant’s mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.
At paragraph 15 of its decision, the Upper Tribunal referred to the fact that Lord Mustill had identified a number of established rules relating to criminal liability. It continued;
“One of these was that in the absence of a specific statutory provision, an embryo or foetus in utero does not have a human personality and cannot be the victim of a crime of violence.
Although the foetus is a unique organism it does not have the attributes that make it a person. As Lord Mustill said (at 262D, my emphasis): “The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person… “.”
The “rules” set down by the House of Lords included these:-
“3. Except under statute an embryo or foetus in utero can not be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.
….
The existence of an interval of time between the doing of an act by a defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death. …
Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.”
So, the CICA were arguing broadly that as the foetus was not a person at the time the mother was administering the noxious substance (alcohol), there was no s23 offence.
And those representing CB were arguing broadly that IF there was consumption of alcohol in the womb, but the consequences of the harm were suffered after the baby was born, the s23 offence is capable of being made out.
[The CICA placing weight on rule 3 above, and CB placing weight on rules 4 and 5 above]
If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime. This, no doubt, is why Mr Foy albeit with some hesitation, sought to rely on the first limb of his argument as it would avoid this difficulty which arises under the second limb. He sought to meet the objection to the second limb by arguing that where FASD occurs, the foetus is damaged before birth, but that after birth there is continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these are continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms.
I cannot accept this analysis. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one’s mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.
Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.
It seems to me that this is fatal to the appellant’s contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute “any other person” within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.
What the Court of Appeal say in effect is that in the absence of Parliament specifically saying that an offence can be committed against a foetus in the womb, the Courts should be reluctant to take that upon themselves. Parliament has passed some legislation about offences that a mother can perpetrate on a foetus (using poison to attempt to procure a miscarriage, for example) and if Parliament had wanted to make excessive consumption of alcohol during pregnancy a criminal offence, it could have done so.
If section 23 had expressly included a foetus as well as “any other person”, EQ would have committed the actus reus of the offence during her pregnancy. But that is not what Parliament has provided. Accordingly, it is because a foetus does not come within the ambit of section 23 that Mr Foy’s argument breaks down.
I am fortified in the conclusion that I have reached by a number of other considerations. First, the approach to section 23 that I have adopted is consistent with the established structure of the criminal law as it relates to the foetus. Parliament has identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provides for circumstances in which a woman administers poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus is an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.
CB’s appeal was unsuccessful and it is therefore NOT a criminal offence to excessively consume alcohol during pregnancy. (As said at the outset, it is not a green light to mothers to do that)
I think that most lawyers felt that CB’s case was not going to succeed, and that a foetus would not (at present) be classed as ‘any other person’ in a legal sense to make out the s23 offence.
Does that mean that it was a waste of time? Well, not really. Firstly, it has drawn publicity and attention to the risks of drinking during pregnancy. Secondly, it has drawn attention to the fact that children like CB aren’t receiving compensation and won’t unless Parliament either change the law (or probably more sensibly change the terms of reference for the CICA to allow them to pay compensation for victims of violent offences AND victims of Foetal Alcohol Syndrome)
I think one could safely say that five Court of Appeal decisions in five weeks whose thrust is “don’t come wingeing to us about nothing else will do” counts as a hint being heavily dropped, much like my own heavy-handed hints that a Darcey Bussell calendar would hit the spot over this festive period.
Hints, of course, are not always taken.
[I know of more forthcoming decisions from the Court of Appeal, and I suspect there will be a few working their way through the system before Counsel for the appellant makes a difficult telephone call saying “we’re doomed, we need to drop this”]
The original case had involved 6 children, the youngest two being made subject to Placement Orders, and the older four being made subject to Supervision Orders and placed with their father.
The mother’s appeal was largely based on a claim that the Judge had failed to properly analyse whether adoption was proportionate and that “nothing else will do” and whether a placement with her instead might have met the children’s needs.
Reading between the lines on this one, mother’s counsel was put through the wringer by the Court of Appeal who have a somewhat different approach to that taken earlier in the year and last autumn.
Ms O’ Leary concedes, without hesitation, that :
i) HHJ Waller is a well known and experienced family judge who gave a long, carefully considered and thorough judgment having seen and heard the parties give evidence.ii) The Social work report was ‘exemplary’ including the way in which it dealt with the question of future placement alternatives for the children in a balance sheet form. The social worker gave evidence and the judge undoubtedly had in mind the totality of her evidence.
iii) The authors of the FAST assessment report were not required by the mother to give evidence. It was conceded on behalf of the mother that the authors of thatassessment would have been the people through whom to challenge the assessment generally, or to put a case that the mother could cope with two children if not with six.
iv) The judge had not been asked to consider the return of the two youngest children; the mother’s case had been unclear, but at trial she had been seeking the return of at least three of the children (including J and O).
v) The judge not only expressed his understandingthat adoption is an order of “last resort” [48] but expressed on a human level, that “it is with great reluctance and after careful consideration” [265], that he reached the decision to grant the care and placement orders.
The issue of interest in this appeal, other than it being yet more bolstering of an argument that appeals based solely on “nothing else will do” are not going to be cutting much mustard anymore, is that the judgment at first instance did not contain a single section in which all of the analysis and proportionality assessment was self-contained, but the Court of Appeal ruled definitively that if this material was threaded through the judgment as a whole, that was sufficient.
The judge recognising that the care plan of the local authority was one of adoption thereafter asked himself the right question namely whether “the permanent separation from the natural family and relatives and the severance of legal ties, is necessary or whether there is any other realistic option” [277].
Whilst not corralled in one section of the judge’s judgment, the positives and negatives of both rehabilitation and of adoption are threaded through the judgment; they are no less a part of the Re BS exercise for that. The judge as he was entitled to do, answered the question he had posed and decided, on the facts and in the light of his careful welfare analysis, that the children’s future welfare could not be safeguarded with the mother and therefore other alternatives had to be considered.
In this case it was accepted that given the ages of the children and the absence of any family members to care for them, adoption was the only realistic alternative to rehabilitation. Where the judge had only two options available to him his decision making process is not rendered “linear” simply by virtue of his conclusion that rehabilitation is not in the best interests of the children, so leaving adoption as the only realistic option for the children concerned. The “holistic” consideration to be applied in applications for adoption had been implicitly, if not explicitly, conducted through the careful weighing up of the benefits for and against rehabilitation and for and against adoption which are found within the body of the judgment.
suesspiciousminds 