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Tag Archives: re c a child 2015

Parents consenting to adoption within care proceedings

 

This is a case decided by a Circuit Judge, so not binding precedent, but it is both sad and unusual .

 

Re C (A child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B146.html

 

In this case, care proceedings were taking place and the mother was with the baby in a foster placement. A major issue was whether the father presented a risk to the mother and to the baby as a result of serious allegations (and convictions) of sexual harm perpetrated by him to adults.  There had been assessments during the proceedings and the Local Authority felt that mother was moving forward and was willing to make changes and asked the Court for more time to assess her further before a final decision was made  (to give her time to make those changes). They actually asked for longer time than the Court was willing to give, but more time was given.

 

  1. The Local Authority were due to file their final evidence and care plan by the 22nd July. However in the light of the report from the independent Social Worker and from their own observations from the good parenting that this mother could offer to her child the Local Authority came to the issues resolution hearing on the 31st July with a plan of further work to be undertaken with the mother as recommended by the independent social worker.

    They asked for an adjournment for several further months ( into 2016) to enable that work to be successfully undertaken. The Guardian was against that work being undertaken at all as she considered it to be outside the timescales for the baby and her own assessment was that the mother would not be able to parent this child.

    However the Court considered, having regard to the positive changes that the mother appeared to have made which included that she had separated from the father and now wished to be a sole carer for her son that it was appropriate for there to be a further period of time given to enable the mother to evidence change and a real understanding of the risks that not only the father posed but that would protect her from manipulation or control from other like minded men in the future.

  2. Accordingly the Court approved a package of work to be provided to the mother. This included a requirement for the mother not to communicate with the father and to obviously undertake the work recommended and to attend all of the appointments. In order for the Local Authority to be satisfied that the mother was not contacting or had not contacted the father and that she was truely separated from him she readily agreed for her telephone records from her mobile number and her Facebook pages to be made available to the Local Authority.
  3. It was also positive that despite the conclusions of the psychological report on the father that he had taken the report to his GP who had recommended that he should first undertake a course with BARST and that once he had concluded that work then there would be a referral back to his GP to consider work to address his issues.
  4. It therefore seemed to the Court on that occasion that the father was for the first time taking a real step to understand that his sexual behaviour was inappropriate and that it needed to be addressed and that coupled with the separation of the parents and the mother’s positive parenting that it did in the Court’s view mean that there could be a really positive outcome to this case and the child could remain being successfully brought up by the mother in the long-term. The court did not approve the timescale proposed by the authority , and required them to come to a final decision as to their care plan for this child ( informed by the engagement and progress the mother made in the intervening period) by the 2 nd October.

 

Just days afterwards though , the mother sent the following email to the Local Authority lawyer (or the lawyer’s assistant)

“Hi ( legal assistant ) I know I shouldn’t be emailing you but I need to tell the truth. The Local Authority want me to do a course with (therapist) but I will never admit that (father) is a risk so saying that I’d wish to be taken home and (son )to go up for adoption. As much as I love my little boy I don’t want to waste the LA’s time I want (son) to be settled I don’t want this to be delayed any longer. They all want me to be honest and I am being honest, I have spoken to (foster carer) and have spoken to a lot of people who think I’m stupid but this is my decision and I wish to go.”

 

The case was taken back to Court and both the mother and father, having had long discussions with their lawyers, confirmed that this was their position, that the child should be adopted and that they would consent to the making of a Care Order and Placement Order.

 

The Local Authority having not been considering a plan of adoption for this child were taken aback, and the case had not gone to their Agency Decision Maker (who is the person who has to approve any request for the making of a Placement Order)

Therefore, as a matter of law, the parents were consenting to an order where the LA were not actually able to apply for that order, and the case couldn’t be finished on that date as the parents had hoped. There was a short delay to allow that to be done.

 

In this case, the paternal grandfather was very actively campaigning about family justice and injustices in this case

The assessments were being undertaken by the Local Authority against the backdrop of an abusive and cowardly campaign by the paternal grandfather on Facebook which has persisted throughout the course of these proceedings. He has made wild unproven claims against the particular Social Workers and the Local Authority generally and against this Court. It was clear from the hearing on the 14th August that the father shares his fathers views.

The campaign has included continued allegations of perjury and that the perjury in the Secret Family Court is to traffic children for money.

All of the Social Workers who have been involved in either child’s case have been named in Facebook pages and described as: “pathological paid liar”, “lying entrapment scumbag”, “paid liar assessor”, “paid liar”. All are described in this list as “baby/child traffickers who are operating in Southampton”. Facebook entries state they were trying to steal his granddaughter and worked ‘for a child trafficking organisation called the Local Authority’. The grandfather has also recommended that facebook users check out the social workers ‘friends list and you will see the child trafficking social workers on there, talk about conspiracies, the evil baby stealing bastards’.

 

It is worth noting that the grandfather had not actually applied to Court to be a party or to play any role in the proceedings or to put himself forward as a carer.

 

The Judge said this, in conclusion

 

  1. In this case both parents not only do not oppose the making of the Care and Placement Orders, they positively consent to them. That in itself is a highly unusual state of affairs. It is highly unusual for parents to actively consent to the making of such orders rather than simply not opposing them.
  2. There therefore is a concluded position between the Local Authority, the Guardian, and both parents that this child should be made subject to a Care Order and should be placed for adoption.
  3. It is a sad outcome for this child. The social workers in this case have gone the extra mile to support this mother in caring for her child. They have done that against the backdrop of persistent allegations and abuse from the paternal family, They have however remained professional throughout and have remained focused on trying to support this mother in caring for her child. It is important that is recorded. It was not their decision to separate this child from her baby, it was the mothers choice, supported by the father.
  4. This was an outcome that was predicted by the risk assessment that was undertaken by the psychologist. But it is still in my judgment right that that opportunity was given to this mother to care for her child. Sadly in this case the mother has chosen her relationship with the father above her relationship with her child.
  5. She has chosen to disregard everything that has been written about the father and the sexual risk that he poses to her and has chosen to remain in that relationship. This case could have had a very different outcome had the mother been able to understand that.Neither parent, nor any member of either the paternal or maternal family have given to this court any other options as to who could care for this child, realistic or otherwise to consider.

    No one from either family has applied during these proceedings to be assessed as a carer or to be joined as a party. Given the campaign being pursued by the paternal family that is surprising to say the least.

  6. In the circumstances for the reasons given there are no other orders that this Court can make other than the orders that all parties invite the Court to make and that is the making of the Care and Placement Orders and therefore with the consent of all parties those are the orders that I make. There is nothing else that I can do.

 

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Experts and fairness

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

 

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.

 

As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

 

Some very quick practice points:-

 

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

 

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

 

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

 

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

  1. A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

  2. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

 

AND

  1. The written reasons for the decision given by the magistrates are as follows:

    “We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

  2. That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

 

NEW

5. Protection for litigants in person

 

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

 

 

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

 

  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.