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Tag Archives: family procedure rules

Can a Court make a Placement Order of its own motion?

 

I know, that sounds a lot like one of those questions that you get in newspapers like  “Was Ed Milliband responsible for Diana’s death?” in which you read the article and the answer buried towards the bottom is “no”

But I’m not so sure.

In a purely theoretical sense, you MIGHT have a Guardian who disagrees with the Local Authority care plan of rehabilitation to a parent / SGO and who supports a plan of adoption.  You MIGHT also have a Judge who disagrees with the LA plan, or more possibly is trying to cut out the stage of the process where there is a decision by the Agency Decision Maker to wait for as to whether adoption is the plan, and wants to have the final hearing without waiting for that.

You MIGHT even have a Local Authority social worker who believes that adoption is the right plan, but is prohibited from applying for a Placement Order because the Agency Decision Maker has said no to adoption or an application for a Placement Order.

In all of those circumstances, I would have said, well hard luck. The Court can only make a Placement Order where there is an application for one, and only the Local Authority can apply, and they can only apply when their Agency Decision Maker authorises it. [I have had each of those hypothetical situations happen, and on each, the Court accepted that there was no power to make a Placement Order without an application]

There’s no such thing as the Court making a Placement Order of their own motion.

 

That was, until I fell over this clause in the Family Procedure Rules.

4.3( 1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

So rather than our long tradition of the Court only being able to make orders of its own motion if Parliament expressly gave them that power, we now proceed in the opposite direction – they have the power to do so, unless the statute expressly prohibits it.

And I’ve checked the Adoption and Children Act 2002, and it does not expressly prohibit the Court making a Placement Order of its own motion.  Why would it? It was written at a time when if you wanted to give the Court that power, you’d explicitly make the provision.

The Court can only make a Placement Order if satisfied that the test is met (which can just be that threshold is satisfied) and that the parents consent is dispensed with, and of course the making of the Placement Order is subject to the welfare paramountcy principle, the welfare checklist and the no order principle. But it does not say expressly in the Act, only on an application.

s21 2)The court may not make a placement order in respect of a child unless

(a)the child is subject to a care order,

(b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)the child has no parent or guardian.

(3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied

(a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b)that the parents or guardians consent should be dispensed with.

This subsection is subject to section 52 (parental etc. consent).

 

So, theoretically, a Court could entertain the request of a social worker (acting without ADM approval) or a Guardian, or their own desire, and make a Placement Order even though the Local Authority have not applied, using rule 4.3.

I’m talking purely theoretically here – I strongly suspect that the first Court to attempt this would find themselves in the Court of Appeal as to whether it was article 6 and article 8 compliant to make such a dramatic and serious order without a formal application being before the Court.

Let’s see what else rule 4.3 says:-

(2) Where the court proposes to make an order of its own initiative

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 5 days  notice of the hearing.

 

Well, that’s nice – the Court isn’t actually obliged to tell the parties that it is going to make an order of its own initiative or to have a hearing to hear what the parties have to say about this plan. But if they do decide to have a hearing, they should give the parties notice of that.

You are saying to yourself, well surely that’s not right. The Court would HAVE to tell the parties and listen to their views before making an actual order, as opposed to directions.

Nope

(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

[Although if they do that, the order must say on its face that the parties have the right to apply to vary or set aside the order]

 

Again, for Placement Orders, this is purely theoretical. If I thought that a Court making a Placement Order without an application for one, at a final hearing, having heard evidence, would end up in the Court of Appeal, the idea that any Court would do so in the absence of a hearing is inconcievable.

[But it is theoretically possible]

 

This reminds me of my favourite story about the mathematician and logician, Kurt Godel.  Kurt Godel basically proved that in any formal system, there will be things that you intuitively know are true but that can’t be proved  – on a deep mathematical level there’s a difference between truth and proof.  Godel’s Incompleteness Theorum is probably my favourite thing in the world that is not a person or my spaniel.

If you want to know more, read Douglas Hofstadter’s “Godel, Esher, Bach, an eternal golden braid” – but be warned, it took me about five read throughs to have even a vague grasp of the Theorum, and that is an author trying to make it as user-friendly as possible. I dread to think what it is like to read the actual Theorum paper itself cold, with no background knowledge.

In a time of huge upheaval and totalitarian governments in Europe, Godel’s friends convinced him to leave his home country of Austria and come to America. During his immigration interview, the American customs officers asked him why he was leaving his own country. He told them about the oppression and that Austria had become a dictatorship. The customs officer said “Well, thanks to our constitution, that could never happen in America” , and it was at that point that Godel told him of the loophole he had found in the Constitution that could allow just that.

Not the best thing to say to an immigration official, but fortunately Godel’s explanation was so involved and complex that they didn’t follow it and waved him through.

 

It is also worth remembering that a Placement Order is permissive. It allows the Local Authority to place a child with prospective adopters. It doesn’t mean that they HAVE to.  So if a Court did make one against the wishes of the Local Authority, it wouldn’t mean that the child WOULD be placed with prospective adopters.

[It might well make things tough for a Local Authority if a Judge gave a judgment saying that placement with the mother was unsafe and doomed to failure and would be too dangerous for a child, if the LA ignored this and went ahead anyway. That would be a very tough Serious Case Review if it went wrong]

 

Although in the context of a Placement Order, rule 4.3 is largely theoretical, it might be handy for all sorts of other orders where you realise that you failed to make an application and invite the Court to make the orders of their own motion.

In case you are wondering about Care Orders –  I think that the construction of s31, wording underlined, means that Parliament envisaged there being an application made by a Local Authority. Is it expressly forbidding the Court to do it without? No, but it implicitly suggests not, and for a Care Order, suggests that the order can’t be made without an application.  [I’d also argue that the s37 provisions are a clear suggestion that a power and boundary as to the circumstances in which the Court could make ICOs without an application have been expressly provided for in the Act]

Care and Supervision

s31 (1)On the application of any local authority or authorised person, the court may make an order

(a)placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)putting him under the supervision of a designated local authority

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Eating cabin-boys and instructing experts

What do eating cabin-boys and instructing experts have in common? Well, it seems that the law frowns on both, and queries whether either was necessary.

The Court of Appeal have given judgment in the much trumpeted issue of what the word ‘necessary’ means in the context of the new requirement in the Family Procedure Rules that before an expert can be instructed in a family case, the Court must determine that their instruction is necessary.

 Re H-L (A Child)  2013

 http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/h-l-judgment-13062013.pdf

In the current context and climate, the Court of Appeal were clearly keen to tackle this issue and give a steer on it as soon as possible. This is how the President opened

 

 

1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250.

2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para [30]):

“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”

We now have to decide what is meant by ‘necessary.’

 

Game on, as they say. So, what does necessary mean?

The short answer is that ‘necessary’ means necessary.

 

 If you are thinking, crikey, was there something good on television or for lunch and the Court of Appeal just wanted to get this whole thing done, don’t worry, we develop the short answer a bit.  (not much, I am trying not to give this a huge build-up)

 

 

If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

 

 

So a spectrum somewhere between indispensable and useful/desirable, but much more towards the indispensable side of the scale.

 

The Court allowed the geneticist and upheld the refusal for the other two experts (a paediatrician and a haemologist)

 

The President also used the case as a reminder that the appellant Court will strive to uphold reasonable and robust case management decisions  (no doubt being mindful that a lot of the current problems that are striving to be unpicked are due in part to the Court of Appeal knocking back any Judge who actually tried to follow the principles of the current Public Law Outline)

 

As this is so short, permit me a digression.

 

That’s rather better than I envisaged, when I mockingly suggested that we would be incorporating the Dudley and Stephens opinion of  necessity into care proceedings.  For those of you who didn’t study law, or did so a long time ago, Dudley and Stephens was the case of shipwrecked sailors who being both marooned and peckish, killed and ate their cabin boy. In mixed blessings for them, they were then rescued (hooray!) but then tried for murder.

 

http://www.justis.com/data-coverage/iclr-bqb14040.aspx

 

The sailors pleaded that they had to kill the boy and eat him or they would all have perished and therefore it was necessary to eat him. This was an attempt to introduce a doctrine of necessity into the criminal law as a defence. The jury could not decide what to do and the case was referred up to the Court of Appeal for guidance.

 

This doctrine of necessity defence was rejected by the Court, in a lovely passage by Lord Coleridge

 

From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother’s notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that “the boy being in a much weaker condition was likely to have died before them.” They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him

 

 

And then

 

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder

 

 

This is a lovely judgment, bringing in all sorts of ideas and references, and interesting to me as a law geek particularly because the Court recognise that the case is a real-life version of a hypothetical example given in legal textbooks of the time of two sailors on a plank and would it be lawful for one to eat the other to prevent them both starving. The authors of the legal textbooks had suggested that it would be, but the Court disagreed.

 

The sailors were found guilty and hanged.   [The whole set up reminds me of those Fortunately-Unfortunately-Fortunately-Unfortunately games/stories we used to tell at school  http://en.wikipedia.org/wiki/Fortunately,_Unfortunately ]

 

[I recall, as I once had to research this, that there is no offence of cannibalism per se in English law – the crime would be either bringing about the death, or if the person had died naturally, a pretty minor Common Law offence of conspiring to prevent a decent and legal burial]

 

So the lessons for today are – if you are applying for an expert make sure you lay on with a trowel how close to indispensable this instruction is and if you are going to eat a cabin boy, wait till he dies of natural causes.      [Which further digresses me to Vic Reeves’ sterling words of advice “If you DO get trapped in your flat…try NOT to get trapped in your flat”]