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“…such obviously fallacious legal arguments”

 

 

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

 

pause, deep breath

 

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

 

 

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

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

The threshold criteria expresses that

 

Section 31 (2)

 

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

 

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

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

The bruising was noticed on 13th May.

 

 

 

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

 

 

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

 

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

 

 

 

 

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

 

 

 

 

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

 

 

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

 

 

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

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

 

 

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

 

 

 

 

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

 

 

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

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

 

 

 

 

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

 

 

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

 

 

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

 

And later:

 

 

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

 

 

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

 

 

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

 

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

 

Further exchanges included (in telescoped form):

 

 

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

 

 

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

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

 

 

 

 

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

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

 

 

 

The Judge’s decision

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

 

 

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

 

 

 

 

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

 

 

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

 

 

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

 

 

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

 

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Tense – nervous, headache

 

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

 

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

 

Hence the title, and by now, you could probably do with an Anadin yourself

 

 

 

Re K (A child : Threshold findings) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

 

  1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
  2. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

 

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

 

  1. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
  2. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
    1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

 

 

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

 

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

 

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

 

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

 

  1. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
  2. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
  3. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
  4. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
  5. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
  6. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside

 

Is, Was and Ever Will Be

 

 

This is a Court of Appeal decision in relation to significant harm in care proceedings, where the harm was said to be emotional harm. And this is always a hot-button topic.

 

Re S & H-S Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1282.html

 

It also deals with the grammatical weirdness that is in the Children Act at section 31, which we all tend to forget to an extent. The Act never talks about whether the child  ‘has suffered’ significant harm, although that’s the language that we all use.  Instead it says “Is suffering” and the law has subsequently developed to say that you are looking at the past, to when protective measures were taken as the relevant date.   (That was a solution derived because care proceedings were being issued where a child had suffered significant harm and then gone into foster care or been placed with a relative – so on the day of issue, it would be inaccurate to say that the child ‘is suffering’ significant harm. So we routinely use the present tense of the Act to talk about the past tense of the relevant date)

 

In these proceedings, they were initiated on the basis of allegations about the children being physically harmed by father, and the LA accepted freely that at the time the proceedings started, they had no intention of issuing proceedings in relation to mother’s care.  The allegations about father fell away – the Court found that he had physically chastised them, but left no marks, and that they had not suffered significant harm as a result of his chastisement and it was not over-chastisement.

However, within the proceedings, the assessments that took place highlighted emotional harm, and in particular the children’s poor attachment to their mother.  The Court found that the children had suffered emotional harm.

The appeal was brought on the following points

  1. The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:
    1. a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings.

b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.

c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.

 

So you can see that timing is important. At the time proceedings were issued, one could not now say that the children ‘is suffering significant harm’ (I know, the tenses make me feel queasy too. I wish the Act just said ‘has suffered’ but it doesn’t.)  Any harm actually occurred within the proceedings. So the first limb isn’t met, and the LA would have to rely on the second limb, that there’s a likelihood of harm in the future.

 

The other bit I’m interested in is

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

 

We hear a lot about attachment in care proceedings, and an awful lot of what we hear is misusing terminology and confusing quality of relationship or emotional closeness with attachment, which is not something you can assess by reading some contact notes or watching mum play with a toddler.  We also hear a lot about  attachment problems without ever giving the context of how prevalent poor attachment is in the general population. Trust me, I’m not saying that flawed attachment has no impact on a child’s childhood and later life (seriously, trust me, I’m well aware of how many of my own problems are due to exactly this issue), but one needs to be careful if pathologising something which is not that unusual.  Remember, the wording of the Act says that the harm has to be attributable to the parent not providing care which it would be reasonable for a parent to provide – if a third of parents in the general population have difficult attachment styles, whilst that may be harming the child, is the parent culpable and behaving unreasonably?

 

The Court of Appeal said this :-

 

  1. Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:
      1. i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.

ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.

iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.

iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.

v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.

  1. The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.
  2. Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:
    1. a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.

b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.

c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.

d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.

e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.

f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.

g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.

The Court of Appeal were critical of the Judge’s failings in the judgment, particularly the conflation of emotional harm and significant harm, and linking the comments on harm to the wording of the Act.

However

  1. As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.
  2. The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.
  3. It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.
  4. This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.

 

 

  1. In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.
  2. For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.

Note that even though the Court of Appeal are telling the Judge off for not using ‘is suffering’ as the test, they themselves slip readily into the language ‘was suffering’.  It is almost impossible not to do it.

 

(I was somewhat surprised that this appeal didn’t succeed – on my reading there were enough failings in the judgment to overturn it, but the Court of Appeal felt that there was sufficient cogency to the judgment in full that they could apply a little bit of Polyfilla to the cracks, rather than declaring that it was so flawed it had to be reheard. I can see that they considered that it was slightly loose use of language rather than a failure to identify whether the children met the s31 test)

 

The Court of Appeal gave a coda of lessons to be learned (whilst not noting that they’d not followed their own lessons in the very same judgment, cough)

 

Lessons for the Future?

  1. Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.
  2. In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
  3. When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
  4. A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
  5. Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
  6. At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
  7. The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.