Tag Archives: ryder lj

Here come the Hofstetter

Posted on July 19, 2017 by suesspiciousminds

Extraordinary, juice like a strawberry

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

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

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

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

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

One does not simply walk into Mordor Family Proceedings Court…

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

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

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

i) list the material taken into account,

ii) identify the key arguments on both sides,

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

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

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

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

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

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

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

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

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

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

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

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

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

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Posted in adoption, case law and tagged ADM decision, Court of Appeal, hofstetter decision, minutes of ADM decision, placement order application, Re S-F a child 2017, ryder lj. Bookmark the permalink.

Payne v Payne – rumours of my death have been much exaggerated

Posted on August 7, 2015 by suesspiciousminds

But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed

“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”

You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.

Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.

The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply. And so many Court hearings are taken up with debate as to whether the case before the Court is a “K v K” case, or a “Re Y” case or a “Payne v Payne” case (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named Re F (A child) (International Relocation Cases)(DF and NBF) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/882.html

The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong” instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.

I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer. Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.

43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed

If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer

The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

“[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

“[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”

For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.

The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 ; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’
Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.

Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.

It will not amaze anyone to know that I am firmly with McFarlane LJ on this. A balance sheet approach can easily distort a case – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.

As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.

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Posted in case law, international, private law and tagged balance sheet, balance sheet approach, Court of Appeal, holistic, international relocation, k v k, payne v payne, re f a child international relocation cases 2015, re y, relocation, ryder lj. Bookmark the permalink.

Experts and fairness

Posted on June 11, 2015 by suesspiciousminds

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

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…………”.
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

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]”.
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)

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.
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.
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.

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.
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.

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Posted in case law, experts, private law and tagged contact, court assistance for a litigant in person, Court of Appeal, court of appeal guidance on experts, expert assessment, litigant in person, psychologist, re c a child 2015, rule 25, ryder lj. Bookmark the permalink.

Removal from grandparents under Interim Care Order

Posted on May 15, 2015 by suesspiciousminds

This is a curious appeal (I have to say that my gut feeling is that the grandparents were damn unlucky to lose this appeal, but of course the Court of Appeal have the benefit of seeing the papers and hearing the full argument. And each time I read the appeal judgment, my view that the grandparents were damn unlucky increased. )

Re T (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed144754

There are two issues of wide import

1. That the test for removal under an ICO from grandparents is exactly the same as for removal from parents.

[Most of us thought this and worked on that premise, but it is helpful for the Court of Appeal to formally confirm it – in short terms – the child’s safety must require immediate separation]

2. That the original trial Judge had not been fair in curtailing the time for the parents to seek a Stay application before the Court of Appeal – and had gone too far.

A stay, for those readers who are not lawyers, is an application that can be made to say “Don’t take the action that the Judge ordered, because I intend to appeal that order, and things should stay the same way as they are now until that appeal can be heard” (think of it like a ‘stay of execution’)

In this case, a judgment concluding that Interim Care Orders were made and that the children could be removed by social workers was announced on Friday 30th January. Counsel for the grandparents immediately applied for a stay (don’t remove the children until I can get before the Court of Appeal) . The Judge granted a stay until 2.30pm on Monday 2nd February, but didn’t send out his judgment until 1.00pm on that Monday. Even if counsel happened to be free and immediately available to look at the judgment the second the email arrived, that only gave 90 minutes to read it, draw up an appeal notice and lodge the appeal. Oh, and get before an Appeal Court to ask them for a stay. And have that application heard and decided. Ninety minutes doesn’t perhaps seem like a fair amount of time for that.

Mr Elliott of counsel seems to me a top bloke, but I don’t actually believe that he is the Fastest Man Alive (as anyone will know, that is Barry Allen. And yes, The Flash is faster than Superman)

Although counsel asked for the stay to be continued for longer, the Court were only prepared to grant him an extra ninety minutes. Thus, by the time that the grandparents case for an appeal was able to be considered, the children had already been removed – that must have massively damaged their prospects of success.

If the Court had been reasonable and granted the stay for say 24 hours after delivery of a judgment that was known to be likely to be appealed, that injustice would not have occurred.

14. Before descending to the merits of the appeal itself, it is necessary to dwell for a short time on the procedural progress of the appeal and in particular upon the paternal grandparents’ application for a stay of the interim care order to allow them to issue papers in the Court of Appeal and make application to this court for an extension of any stay until at least the permission to appeal application could be determined.

15. The sequence of events is that the judge, as I have indicated, announced his decision to make the interim care order on Friday, 30 January, but did not hand down his judgment until it was circulated by email to the advocates shortly after 1 pm on Monday, 2 February. On the application of counsel, Mr Mark Elliott, who has conspicuously and very effectively stood up for the interests of the paternal grandparents in these proceedings, the judge granted a stay on Friday, the 30th until 2.30 on Monday, 2 February. It became clear during the course of the morning of the Monday that preparation of the judgment was to an extent delayed and the judge therefore extended the stay to 3 pm on that day.

16. At the hearing which took place shortly after the judgment was circulated and I should indicate for these purposes the scale of the judgment, it runs to some 31 closely reasoned pages and amounts to 120 paragraphs the judge was asked to extend the stay until 3 pm on the following day, 24 hours later. However, the judge declined to do so and was only prepared to extend the stay until 4 pm on that day, 2 February. Counsel, Mr Elliott, those who instruct him and his clerks, were engaged in a process of trying to make contact with the Court of Appeal in order that their application for a further stay might be considered by this court. They were told that such an application could only be entertained if a formal notice was filed, and it simply was not possible for them to get the paperwork in order by 4 pm, when the judge’s stay expired.

17. The Local Authority were mindful of the procedural and professional difficulties that I have described, and they in fact allowed a further hour’s extension to 5 pm, but at 5 pm on 2 February, the children were removed from the paternal grandparents’ care. At shortly before 7 pm, Mr Elliott was able to make an oral application to the out of hours Lord Justice on duty on that night, but by then the children had been removed and the stay application fell to be considered in the colder light of day subsequently, and on that basis it was considered by me on 7 February, when at the same time I initially refused permission to appeal, and so the question of a stay did not arise.

18. I go through that procedural chronology for this reason: Mr Elliott as his fourth ground of appeal complains that the sequence of events and the limited stay granted by the judge was profoundly unfair to his clients, and also I think his submission is that it was not a procedural course which was in the best interests of the children. It effectively prevented an application for a stay being made to this court until the children had been removed.

19. In short terms, I think Mr Elliott’s point is very well made. This was not a case, happily, where the children were in any situation which could be described as immediate risk of physical harm. There was no emergency in that sense. The children had been living for a very substantial period of time in the grandparents’ home. The grandparents, we have been told, despite some concerns on the part of the social workers to the contrary, had not behaved in any unreasonable or worrying way in the intervening period between the Friday, when they heard that the order was to be made, and the Monday when judgment was handed down.

20. From the perspective of this court, it is difficult to see why Judge Meston felt unable to grant a stay of sufficient length to enable an application to be made to this court. It is well known, and has been the subject of judicial comment by judges of this court over a significant period of time, that judges at first instance, in a case which does not have the characters of a 999 emergency, should be encouraged to establish a short but reasonable stay to their orders in cases such as this so that an application can be made to this court. Judge Meston, hearing the case as he was on a Monday, might reasonably have contemplated a stay measured in the length of two or three days to allow an application to be made to this court as I have described, and not to do so seems to my eyes to be entirely unwarranted.

21. It is not – I do not think Mr Elliott argues it in this way – a ground of appeal that would lead me to hold that the judge’s overall order about the making of the interim care order should of itself be set aside, but insofar as I need to, I would agree entirely with the criticism of the judge’s process that is made in ground four.

On the facts of the case itself, the removal was not an emergency one – the Court had decided that the children’s needs were not being met but their safety wasn’t in jeopardy.

For my part, I’m not convinced that the ‘child’s safety requires immediate separation’ was borne out, but the Judge thought that it was, and so did the Court of Appeal.

My reading is more that the Local Authority were arguing that their assessment of the children’s needs was being hampered by them being with their grandparents and that removal into foster carer would allow for a better assessment. (I have heard that argument posited before, and I’ve always thought that it doesn’t meet the legal test for removal)

26. In addition, it is plain that Judge Meston in the course of his judgment considered that the plan to have these two children assessed in a neutral venue with skilled foster carers was a helpful step for the Local Authority to take. It would provide helpful, vital, information for those charged with drawing up any plan for the children’s future. It would also, if the grandparents were to become once again the full time carers of the children, give the grandparents much needed information about the sophisticated needs of these young children.

27. But again, it is plain on a reading of the judge’s judgment, and it is the submission of the Local Authority and the guardian in this case, that the judge did not make the order simply because he favoured the process of assessment that was available; he made the order, it is submitted by those who oppose the appeal, because he considered that the test of “safety demanding immediate separation” was met.

28. It is therefore necessary to see what the judge did or did not say about the level of harm to which the children were currently exposed in the grandparents’ home. Before descending into detail, it is helpful to summarise the case that is put by the Local Authority and the guardian. They do not assert that the grandparents themselves are fresh sources of significant harm to the children.

29. The case that is put is that these children have been profoundly damaged in an emotional and psychological way by the experience that they have previously lived through, and that in the care of the paternal grandparents, the need for enhanced parenting is not being met, and that despite their best endeavours the grandparents are simply not able to provide the sort of care that the children need, that the children’s behaviour is deteriorating and has been seen to deteriorate over time and contact which is supervised at times when the mother has observed them, and also more generally when observed by social workers. The Local Authority’s case, to put it in lay terms, was simply that “enough is enough”, the time has come when it is no longer in the children’s interests to be exposed to further deterioration in their emotional wellbeing.

[I interrupt. This is smacking to me of that rather insidious ‘reparative care’ argument…]

30. In the course of his submissions, Mr Hand has taken the court to a number of parts of the judge’s judgment where he refers to evidence about harm to the children that he has heard from the social worker and from the children’s guardian, and to findings that the judge has made. It is not necessary for me to turn to those parts of Mr Hand’s submissions which in my view did not advance his case to any great extent, but at paragraph 108 of the judgment, the judge said this:

“The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children’s needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father’s hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents’ attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice.”

The judge had already made findings in a number of places about the need for the children to have enhanced parenting. He said at paragraph 107:

“They are also said now to require reparative care, with a high standard of skill, insight and consistency.”

[Yes, there’s the reparative care bit]

31. Looking back to an earlier stage of the judgment, in paragraph 92, the judge there lists the findings that the Local Authority sought in relation to the grandparents. Most of those are not directly relevant to the issue of harm to the children now, but the judge does say this at subparagraphs 9, 10 and 11:

“(9) The Local Authority point to the deterioration in the children’s behaviour since September shown by the mother’s statement, the contact records and the school reports.

There is no doubt that there have been serious problems in the children’s behaviour which was noted by almost all the professionals. As was said by the social worker, it was not suggested that the grandparents have been the cause of this behaviour but that their ability to manage it is limited. As was said by RP, J has sought attention by a level of negative behaviour which is not normal for the behaviour of a four year old, and she described his behaviour as escalating without strategy and routine.

(10) The Local Authority contend that the paternal grandparents struggle to set appropriate boundaries for the children. In the parenting assessment J was noted to be violent to L without there being any reprimands or other consequential for his action. In general his behaviour is challenging.

Clearly the behaviour of J, in particular, has been remarkably difficult for the grandparents to deal with, and if it continues there will be serious implications for his development and for the relationship between him and his sister.

(11) The Local Authority submit that the children have suffered significant harm and disruption in their lives to date because of the care provided by the parents, and that the children have a heightened need for stability and consistency and require reparative parenting. L also has special educational needs and requires better than good enough parenting which the grandparents are not in a position to meet. In this respect it is submitted that the paternal grandparents are not in a position to meet those needs for the rest of the children’s minorities.

There is no dispute that the children have suffered significant harm and disruption and there can be no dispute that they have a particular need for stability and consistency and require reparative parenting. The evidence overall does raise very real doubts about the abilities of the grandparents to meet the children’s particular needs.”

32. Of that material, Mr Hand in particular draws attention to subparagraph 10, where focus is placed upon the behaviour of J and the fact that the grandparents find that behaviour remarkably difficult to deal with. Within that subparagraph, I would stress the following; the judge says:

” … if it continues, there will be serious implications for his development and for the relationship between him and his sister.”

Pausing there, that is a plain highlighting by the judge of a profoundly important long term factor in the case. The starting point for any consideration of a child’s welfare is that it is normally likely to be in his or her interests to be brought up with and continue to live with any siblings. What the judge identifies at subparagraph 10 is a potential for J’s behaviour, if it continues to deteriorate or even be maintained at its current level, to call into question his ability long term to find a home with his sister.

33. The judge, having made those particular findings, moves on in his judgment to cast them within the test of identifying safety requiring immediate separation. The judge says this at paragraph 103:

“At this stage and on the evidence available I do not propose to rule out the paternal grandparents from further consideration as potential carers for the children (or either of them). They are devoted grandparents who have been prepared to take on the children, and they might have taken a more constructive position had they had legal representation at an earlier stage and perhaps, thereby they might have obtained more support from the Local Authority. They almost certainly now represent the only chance of keeping the children within their birth family. Although there is considerable force in the criticisms of the grandparents it is necessary to be cautious before deciding that they are not, and could not become, a realistic option (even if that turns out to be an option to be considered for only one of the children). At a final hearing the realism or otherwise of that option is likely to depend upon (among other things): (a) evidence that their attitude to the inevitable constraints and intrusions of Local Authority involvement really has changed, and that any improvements are not superficial as the social worker suspected they were; (b) further (and better) evidence about the grandmother’s medical condition and prognosis; and (c) the availability of effective measures to protect the children from harm in the longer term.”

There the judge, as well as stating that he is not ruling the grandparents out, does identify serious deficits in their ability to care that require attention in terms of further evidence at the hearing.

34. Turning to the harm in relation to the children, the judge says this at paragraph 108:

35. Drawing matters to a conclusion, the judge describes his analysis at paragraphs 113, 114, 115 and 116, before stating his conclusion at 119:

“113. I accept the fundamental arguments advanced by the Local Authority and guardian that it is now essential and urgent for the long term needs of the children to be assessed to inform the final care plans, and that in the circumstances of this case the necessary assessment cannot properly be carried out while the children remain in the care of the paternal grandparents.

[interruption – of course, that’s not a safety issue]

114. Secondly, the Local Authority and guardian argue that the evidence of the children’s continuing and deteriorating behaviour, not least towards each other, shows the extent to which the children have been damaged in their upbringing and shows the limited ability of both paternal grandparents to understand and manage the children’s situation and needs. In essence the contention of the Local Authority and guardian was that the situation is bad and could get worse; and although there has been no obvious emergency that requires immediate removal of the children, there has been a growing level of concern and the situation is serious and urgent enough to justify such a removal.

115. In looking at the evidence overall including the incidents and difficulties indicating harm to the children and the risks of harm, I have tried to assess whether these are really long term welfare concerns, rather than concerns which involve a current risk to safety.

[That’s really the nub of the case – these could all be categorised as long term concerns, rather than immediate safety ones]

116. I accept the evidence of the social worker and guardian that things cannot remain as they are. The concerns of the Local Authority are valid and are justified by the evidence. The need to understand, manage and address the problems and needs of L and J and the potential for further damage to them outweigh the arguments for leaving the children with the grandparents in the hope that the grandparents continue to control their attitude to the Local Authority and their reluctance to cooperate, and in the hope that the grandparents can shortly acquire the skills and insight they lack.
…

119. In the light of all the evidence I have concluded that there is sufficient concern about the children’s emotional and psychological safety to justify the orders sought for the reasons advanced by the Local Authority and guardian. I have therefore decided that it is necessary and proportionate to approve the proposals of the Local Authority for removal of the children.”

Given the importance of a finding that the child’s safety require immediate separation, this seems somewhat thin.

36. Mr Elliott in his submissions to the court accepts as a matter of fact that the judge did identify harm of the nature that I have now described, and did seek to cast it in the context of current safety needs, but he submits that the element of harm that is identified simply does not come within what the case law requires. He says this is emotional harm and at no stage does the judge identify why at that date, in January 2015, the children required removal from the home because of the impact on their emotional wellbeing, when that had not been sought at an earlier stage and when the court was going to look at the whole question of the children’s future wellbeing only some four months further in the future. He submits that the judge simply did not achieve findings that got as far as identifying the children’s immediate safety needs, in emotional terms, requiring removal on that day.

37. I am bound to say, when I granted permission to appeal and when I heard Mr Elliott’s submissions this morning, I too could readily identify the dislocation that he draws attention to between the judge on the one hand saying “I do not rule these grandparents out as long term carers,” but on the other hand saying nevertheless the children’s circumstances require immediate removal.

38. Having now had the benefit of being taken to the detail of the judgment by Mr Hand in the way that I have described, I take a contrary view. The judge declined to rule out the grandparents at that stage for reasons to do with their long term capacity to be carers of the children. For the judge, the jury was still out on the question of whether or not the grandparents could bring themselves to meet the needs of the children long term, and the issues that the Local Authority had sought to identify, which included matters to do with the grandmother’s health, the ability of the grandfather to devote himself more fully to the care of the children alongside his laudable and clear desire to work hard in his chosen trade, and other matters, were long term issues that required further investigation.

39. They are, I now accept, separate matters from the immediate wellbeing of the children, and I can see how this experienced family judge, who had become immersed in the evidence of this case over the course of five days, who said that he was considering the test of safety requiring immediate separation, could come to the view that the children’s safety in emotional terms did indeed require separation at this stage.

40. For me, the elements of the evidence that I have drawn attention to, that we have been led to by Mr Hand, establish the context within which the judge’s decision can be seen to be justified in evidential terms, and also justified as a conclusion. In particular, paragraph 92 subsection 10, to which I have already drawn attention, is striking. The judge there is identifying the status quo in the grandparents’ home, where J was behaving in a way that the grandparents found remarkably difficult to deal with, but also in a way which had “serious implications for his development”, and which might, if it was allowed to continue and consolidate, pass the point of no return so that the option of this boy being able to grow up in the same home as his sister might be lost, in terms of safety in emotional terms, requiring immediate separation. To my eyes, that point alone would justify the order that the judge made.

41. Secondly, I have already described the approach of the judge and the experience of the judge. Where a judge correctly identifies the legal test, says he is applying it, and says he has the evidence which justifies that conclusion, and is able in the course of the judgment to refer to that evidence, this court should be slow to interfere and say he is wrong. There is no indication here that there was an error of principle in the judge’s conclusion, and to my mind he should be given a substantial margin of respect by this court in having conducted the exercise that he said he had undertaken.

I think the grandparents were unlucky here – I would have been fairly confident about their appeal had I been them, and fairly doubtful if I had been for the Local Authority. Interesting that MacFarlane LJ thought that in and of itself – J’s behaviour might lead to him and his sister not being able to be placed together in the future as being sufficient for a finding of ‘safety requires immediate separation’. I see that particular formulation being deployed in future cases. How does one assess a ‘might’? Is it necessary to show that it is more likely than not to happen, or is it sufficient to be a risk that cannot sensibly be ignored?

This is what Lord Justice Ryder had to say on the issue

44. The judge identified the correct test in principle. He was perhaps less clear in a detailed judgment about his analysis of the findings that he made and the prima facie evidence that existed. This court has, however, been assisted by the submissions of counsel for the Local Authority, the children’s guardian, and the appellant paternal grandparents. It is now sufficiently clear that the judge accepted the evidence of the Local Authority witnesses and the analysis of the children’s guardian that the children had suffered significant emotional harm in the care of their parents, and importantly that that harm had continued in the care of the paternal grandparents. The behaviour of the children as between each other, in particular from the child J towards his sister, had continued and deteriorated in the paternal grandparents’ care, to the extent that one of the risks identified was that as a consequence of their behaviour, the children may have to be separated such that they might not be able to be cared for together by anyone. That was capable of being characterised as a safety question that demanded immediate separation; i.e. to put it colloquially, enough was enough.

Let us hope that ‘enough was enough’ does not become the latest soundbite to be shoved into every submission and skeleton argument in the next six months.

Note also the continuing trend of the Court of Appeal to move away from where they were on appeals post Re B, where a judgment needed to be a stand-alone document explaining and making plain why a decision had been made to a position where now the Court of Appeal are willing with a judgment that is thin in places to open up the luggage of the case and have a good rumage around to see if there are garments within that could cover the barer patches of the judgment so as to preserve its modesty.

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Posted in case law and tagged appeal, appeal court, application for a stay, grandparents, interim care, macfarlane lj, re t children 2015, removal, removal from grandparents, ryder lj, separation, separation hearing, stay, test for separation. Bookmark the permalink.

Court of Appeal – split hearings aren’t to be used for ‘whodunnits’

Posted on May 11, 2015 by suesspiciousminds

Not their exact words, you understand.

These are their exact words:-

The hearing at the end of which the findings were made was what is known as a ‘split hearing’ i.e. a hearing limited to a discrete issue of fact without a full analysis of the welfare context. Counsel for the parties before this court acknowledged that the decision to have a split hearing which was taken by a different judge when different advocates were involved cannot have been right given that the issue to be decided was perpetration in the context of an incident of harm, rather than whether the harm occurred.
It is unnecessary for this court to do other than refer to the clear guidance on the point that has been firmly and repeatedly given by this court but just as repeatedly ignored, see for example In the matter of S (A Child) [2014] EWCA Civ 25 at [27] to [31]. There is no discrete issue that would determine the proceedings in a case like this where harm has been suffered and the perpetrator of that harm is unknown. The social work assessments of those in the pool of potential perpetrators may cast important light on the allegations that are to be determined and upon the reliability of those in the pool and the other witnesses and materials that are available

Re BK-S (children) (Expert evidence and probability) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/442.html

If you were wondering which appeal judge was standing up for Lord Justice Ryder’s lead decision in the little-loved Re S (a child) 2014 which effectively banished split hearings for anything other than the most serious case (even though split hearings were invented by the Children Act advisory committee and endorsed by the House of Lords)… well, you aren’t really wondering that, are you?

[If you are, then I would like to talk to you about my new business opportunity, where investors get to buy tonnes of gold for the price of grammes of gold. This gold will be all yours when the Sun enters its supernova phase. The price of gold will likely to increase all the time that your investment is maturing, making this an even more profitable venture. It really is a once in a lifetime investment opportunity]

It is an interesting case in itself, a 6 month child who had been administered (by an adult) doses of an anti-psychotic medication over a period of time. It was established by toxicology reports and medical evidence that the child had been given this drug, Olanzepine, and that it had caused him significant harm. The only real issue was whether it had been given by father, mother or paternal grandfather.

The parents were separated, and thus there was quite a clear log of who had been caring for the child on particular days. And the expert called (and then re-called) was able to give quite detailed accounts about how the test results showed the level of Olanzepine, and how Olanzepine has a half-life (i.e if someone takes 100 milligrams of X time, there would be say 50 milligrams, and after 2X time, 25 milligrams, and so on), such that calculations can be done to work back from the level to calculate when the drug was taken. Or in this case administered.

The difficulty was that all of that information on half-life is based on adults. For a child of six months, the half-life might be different. It might react more quickly, or more slowly, or have greater symptoms. The reference to Tanoshima here is the name of a study – both are on single children, because obviously there are ethical medical issues on giving anti-psychotics to 100 infants to see how quickly it comes out of their system.

When Professor Johnston was recalled on 28 May 2014, the following oral evidence was adduced:

“Q. [..] There are two reported studies. One that says a half life is 11.6 hours in a 28 month old child. The other one is 13.72 hours for a child of 17 months.

A. Yes.

[…]

Q. Can we safely assume – and I mean with almost certainty – that the half life of [Z] would have been less than 21 hours?

A. I think that would be a reasonable assumption.

Q. Yes. I think you also said in your previous evidence that it would be a reasonable assumption to take the 13.7 in the Tanoshima case as well?

A. Yes.

Q. Would that be right? So if I were for instance to take 18 hours, that would be safe as well?

A. Yes.”
The judge accepted the evidence that was adduced in the following passage in his judgment:

“Professor Johnston agreed that to assume a half life between 21 and 13.7 hours would be likely, but that working on a half life of 18 hours in those circumstances would be safe.”

On reading that, I can instantly see the appeal point. If the half-life was taken by the Judge as being probably 18 hours, but between 13.7 hours and 21 hours, and that took one person OUT of the pool of perpetrators and made it more likely than not that the other person administered the drug, then an alternative reading of the evidence given might be

“So it is very difficult to be sure of the half-life of Olanzepine in a child of this age, because the research deals with only two children, and both are much much older. It would be unwise to place reliance on hard and fast numbers to resolve this problem” (my words, but I guess that’s what counsel had been driving at with those questions)

The Court of Appeal considered that the Judge had not been wrong to follow the expert evidence and to make the finding that Olanzepine had been administered to the child on a date when mother had been in hospital with the child and father had not been present – thus that the mother had been the person who administered the drug to him.

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Posted in case law, fact finding and tagged Court of Appeal, re bk-s 2015, re bk-s children 2015, ryder lj. Bookmark the permalink.

Appeal, Special Guardianship Order to a stranger

Posted on April 29, 2015 by suesspiciousminds

The Court of Appeal in Re H (a child) 2015 considered the decision from a circuit Judge, Her Honour Judge Wright, to make a Special Guardianship Order to a woman who knew the mother through church as opposed to placing the child with the father. From the material before the Court, it appeared that the prospective Special Guardian had been observed with the child for about an hour.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/406.html

This case, as it deals with how to conduct the balance properly, and making it plain that all of the strictures of Re B, Re B-S et al still apply (as it involves the permanent removal of a child from a parent) makes for an interesting comparison with the Court of Appeal in Re E-R (a child) 2015 where they made it even more explicit that in private law disputes, there is no broad presumption that a natural parent is the best person to care for a child.

https://suesspiciousminds.com/2015/04/27/no-broad-presumption-in-favour-of-a-natural-parent/

The Court of Appeal (rightly so in this case) were critical that the PLO process had not been properly followed. These weren’t nitpicking complaints, but actually went to the heart of why the case had been decided in a flawed way and why there had to be a re-hearing.

There had been no continuity of judiciary, no continuity of representation, the parties had not properly identified the issues and hence the Judge had not been able to properly narrow the issues at IRH, and critically proper thought had not been given as to whether the expert in the case ought to be asked to either provide an addendum or to be called to address what was really the key issue in the case.

Could this father, having undergone therapy and developed insight, now care for this child to a ‘good enough’ standard, or did the expert’s prior report indicating that he would need to have another person alongside him to co-parent still stand?

The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.
The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.
The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.
Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.
The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.
In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.
There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge

The underlined portion of paragraph 16 is important – the LA here were relying on Dr Campbell’s conclusions that the father could not be a sole carer for H, and the Court of Appeal took the view that it was they who were responsible for updating Dr Campbell and getting fresh evidence before the Court whether the change of circumstances changed his view (and moreover, responsible for paying for that) – rather than the father, as it was his case that he had changed.

Worth bearing in mind.

I found it a little odd that the Court of Appeal were not even more interested in threshold, which seems on the thin side post Re A and Re J (particularly given that this child had been with father as a sole carer during the six months of the care proceedings)

The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16’ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ’emotionally available’ to help her make sense of her experiences.
The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

The father also produced evidence from professional bodies and groups – given that what was being said was that his autism (in whole or in part) was why he could not parent as a sole carer and needed another adult to provide day to day support and care. The Court of Appeal were critical that this evidence was not properly analysed in the judgment – yes, the Court could have decided that it did not tip the balance in favour of the father, but to do so, it would have to have grappled with the evidence and set out an analysis of why it was found not to tip the balance.

18. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

” I do not accept the support offered by way of his family, MENCAP, and NAS would be sufficient to meet [H’s] need for a co-parent to assist [the father] if she were to remain in his care in the longer term“
First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

“The difficulty he has is that, as was made clear in the previous proceedings, he does not have a reliable person who can provide primary care for [H], who will be attuned to her changing needs, and with whom he can work in partnership. Sadly, the evidence from the parenting assessment, [the social worker] and the guardian’s (sic) indicates [H] remains at risk of harm in her current circumstances.”
The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.
It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

A further criticism was that the father had wanted to call evidence from family members and had had this request refused. I know that this is an issue that greatly troubles Ian from Forced Adoption, so I will set out the Court of Appeal’s ruling on that (which he will like)

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

If a Court is going to refuse to hear evidence from witnesses, they will have to give reasons for that, and set out very clearly in the judgment why that was decided.

Ryder LJ was very clear that the problems in this case and judgment arose fundamentally from a failure to have a proper IRH

All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.
At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

The Court of Appeal were unhappy that there had not been a proper Special Guardianship report, which is of course a statutory requirement. There is something VERY IMPORTANT in this bit, which is going to make 90% of my readers groan – the Court of Appeal rule that if an SGO is sought, there should be an application. Rather than, as usually happens, the Court is asked to make it of its own motion. Either the prospective special guardian or the LA should make a formal application. [And that s10(9) applies to such applications – which in a practical sense means that anyone other than a person with whom the child has lived for at least a year, or has a residence order OR has consent from everyone with PR to make the application, is going to need leave of the Court]

{There’s a slight bit of wiggle room here It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. so if everyone agrees, you could still ASK the Court to rule that a formal application isn’t needed. Given that there is an application fee, and the Court service is financially straitened, I’m not sure I’d count on that. At the very least, you are going to need to know prior to IRH whether the Court is going to agree to use that power, or insist on a formal application and possibly a s 10(9) application. Remember that both can easily be foreced by one parent saying that they resist. }

What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.
In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.
In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

The final major criticism was that given that this was a stark choice between two options (dad or prospective SGO) the Court had not properly allowed the father to challenge the assertions that the SGO would be able to care for the child.

The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.
One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.
All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.
The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

The Court of Appeal was very damning in Ryder LJ’s final remarks

I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.

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Posted in case law and tagged continuity of counsel, Court of Appeal, identification of issues, issues resolution hearing, judicial continuity, plo, re h a child 2015, ryder lj. Bookmark the permalink.

Baby without a name / child removed because of father’s aggression towards social workers

Posted on December 4, 2014 by suesspiciousminds

The Court of Appeal have given judgment in the full Permission to appeal application by these parents from a Care Order and Placement Order decision at first instance.

Re BP and SP v Hertfordshire 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1524.html

This case was covered by me when Ryder LJ first gave a judgment on the papers moving it forward to fuller hearing

https://suesspiciousminds.com/2014/08/02/we-are-all-unquantified-risks/

[You might recall, if I jog your memory, that this was the case involving a child where there had been no naming ceremony, and the father had assaulted the social worker – and at the hearing before Ryder LJ the thrust of the argument had been “if the child was removed because the father was a risk to social workers, was that wrong?”

If you don’t remember that, you might remember the Telegraph’s report about the case

http://www.telegraph.co.uk/news/uknews/10855218/Child-with-no-name-must-be-adopted-judge-rules.html ]

These were Ryder LJ’s strong words at that initial permission hearing (but the permission hearing could not ultimately reach a decision because the parents and their McKenzie Friends did not have the court papers from the care proceedings that would be vital in reaching a proper determination of the basis on which orders had been made.

These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

At this hearing, the papers were available, and the application was heard by three Judges. Ryder LJ gives the lead decision, and again reminded everyone that “nothing else will do” is not a legal test or principle.

There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).

In relation to the father’s main point of appeal, the Court of Appeal encapsulate it like this :-

In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them.

Their decision and analysis in relation to this, having seen all of the papers (that were of course not available to Ryder LJ at the previous hearing ) was this

On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.

The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:

father exhibited sustained antagonistic behaviour throughout the proceedings before DJ Mellanby who concluded that his behaviour was likely to continue;

the consultant psychiatrist relied upon by DJ Mellanby was of the opinion that father would not change his aggressive behaviour;

father had assaulted the social worker in the presence of P in respect of which he has been been convicted and since then he has also been convicted of an offence of threats to kill for which he was sentenced to a term of imprisonment;

father was unlikely to be able to manage his behaviour even in the presence of his children;

father prioritised his own needs above those of his children:

by refusing to engage with the local authority to agree contact with his sons even to the extent of denying B a relationship with him;
by refusing to comply with assessments or engage with the children’s guardian;

iii. caused an unnecessary change of placement for P;

father is unlikely to change his behaviour;

mother is unable to control father’s behaviour.

Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.

Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.

There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.

In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.

Against that factual backdrop, the Court of Appeal was satisfied that father’s bare assertion that he might be a risk to social workers but not to his child was not bourne out by the evidence, and thus that limb of the appeal was not successful.

The interesting academic argument about whether threshold is met as a result of a parent behaving aggressively to a social worker but not to a child or in the presence of a child, will have to wait for another case.

A fresh limb of appeal was raised, which was that within pre-proceedings work, an expert had been instructed, and the parents subsequently learned that this expert was on a retainer basis with the Local Authority in that they had agreed to do 20 hours of work with the Local Authority each week for 46 weeks of the year, making them really semi-employed by the Local Authority (not in an employment law sense, but leading the parents to question whether such an arrangement could still result in the expert being considered ‘independent’)

A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).

The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.

The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.

Such an arrangement, the Court of Appeal say, could be capable of giving rise to a conflict of interest, and proper transparency needs to take place (not just burying the disclosure deep in the pages of boilerplate Letter of Instruction); but there had not been a conflict of interest in this case – the Court of Appeal noted that there had been no cross-examination of the expert by the parents, who would have been entitled to do so if they challenged the report.

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Posted in adoption, case law and tagged appeal, child with no name, Court of Appeal, mckenzie friend, nothing else will do, parent violent to social worker, re bp v hertfordshire 2014, ryder lj. Bookmark the permalink.

Nothing else will do – In which Nails are placed in coffins, and heads of pins are danced upon

Posted on November 19, 2014 by suesspiciousminds

The third Court of Appeal decision in a month to backtrack from “nothing else will do” and this one does so very powerfully. (previous two Re MH and Re M, both blogged about last month)

To the point of saying that it is not a test.

In case you are pushed for time to read this, I’m afraid that you still have to write/read all the analysis of the various options, and the Court still have to consider those options and analyse them, but the Court of Appeal say that “nothing else will do” isn’t a test, but a process of deductive reasoning.

In case you are new to the whole adoption debate, then welcome, and in a nutshell there appears in the last year to have been a tension between the Government (pushing a pro adoption agenda, including telling social workers to stop thinking of adoption as a last resort) and the senior judiciary, who have been mindful of the principle that adoption is a last resort.

Even the President of the Family Division has acknowledged this tension

http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=18284:top-judge-recognises-tension-over-court-rulings-and-guidance-on-adoption&catid=54:childrens-services-articles

the Department for Education said: “The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort.”

Asked about the issue by Local Government Lawyer at a press conference yesterday (29 April), Sir James responded: “Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means.

“The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so.”

But the President added: “I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in Re B in the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year…..

“So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law.”

The Family President added: “In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.”

You might want to put a mental Post-it Note on the President (the lead author of Re B-S) saying THIS

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view

Because the Court of Appeal (Ryder LJ lead judgment) are currently saying THIS

Have fun reconciling those two things.

The case is CM v Blackburn with Darwin Council 2014 (lead judgment Ryder LJ)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1479.html

The point of the appeal was an issue that immediately came into most people’s minds following Re B-S – dual planning.

It is not (or was not) unusual, to see a care plan that said “we will search for an adoptive placement for the child for 6 months, and if that is not successful, then a foster placement will be found”

As a matter of law, based on the principle of “nothing else will do”, how could a Court say that fostering would not do in order to make the Placement Order, when the plan envisages fostering being a possible outcome? Either it is permissible to say “adoption is better than fostering for this child, but both would do” or on a strict interpretation of “nothing else will do” the Court should reject the Placement Order as there is clearly something else that will do (fostering, explicitly provided for in the dual care plan as the fallback)

The Local Authority in such cases aren’t saying that fostering won’t meet the needs of the child, it is saying that adoption is a BETTER way of meeting those needs. (which for me is fine and common sense – they have to make the case, but a Court should have that discretion)

Is that compatible with “nothing else will do” ?

Well, given cases in October (and cough, the adoption figures and political uproar), it is not surprising that the Court of Appeal say “yes, dual planning is compatible with the law”

Here’s what they have to say about “nothing else will do” (and it is not only a major shift, but it probably makes large parts of the Myth-Busting document now accurate, or at least more accurate than it was before this judgment was published – so it was a fortune-telling document as well as a Myth-Busting one)

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court’s approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]

“we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt.”

Yes, you have read that right – the Court of Appeal are now calling nothing else will do an unnecessary gloss on the statutory test. A gloss that a year ago they were embracing and thrusting on us all. We are rewriting history here – in the words of Kevin Costner “We’re through the looking glass here, people”.

Someone else might hear make a cruel remark about irony and unfortunate glosses to statute, but that would be beneath me.

The Court of Appeal goes on

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same.

(That will delight the Government and Mr Narey – as this is their line. But go on, please)

A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.

[You may be seeing here that there is no mention of the least interventionist order, last resort, draconian nature of the order – that’s all bound up here in proportionality. But it is fairly pivotal and important that it was the specific issue of whether adoption was a proportionate answer and the circumstances in which it might be that led to the ECHR decision in Y v UK which was at the heart of Re B and Re B-S. It is a strange omission, and one which is also conspicuous by its absence in the Myth-Busting document]

That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.

“nothing else will do” is not a test – that noise you may hear as you read this is your eyes rolling. It is just a description of the process of deductive reasoning. Therefore, if the Judge has carried out the balancing exercise and answers the question “Am I satisfied that nothing else but adoption will do?” with a “No”, can he or she make the Placement Order? If it is not a test, but just a description of a process, then possibly.

I mean, this is just flat out strange – the Supreme Court made themselves rather plain, I thought. But now we are told that this is not in fact a test, and we should just read the word as ‘requires’

I’ll deviate for a moment

Supreme Court, Re B June 2013. http://www.familylawweek.co.uk/site.aspx?i=ed114409

We are all familiar with Lady Hale’s key paragraphs, but I’ll set them out, because they seem to be vanishing before our eyes. Note that on the issue of “nothing else will do” she says that all of the Supreme Court Judges agree on that. And she is right. Although she gave a minority judgment in the case overall (i.e whether the Judge had got the individual case right or wrong), on this aspect, these paragraphs reflect the decision of the Supreme Court.

Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face-to-face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that “nothing else will do”.

Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.

But that is not the end of the story. We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.

Let’s now look at the words of the President in Re B-S on this issue

Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child “requires” this. “Require” here has the Strasbourg meaning of necessary, “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”: Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test.

Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ). As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.

The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

And

It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.

All of these “striking” words, we are now told, were not intended to amount to any change in the legal test or a gloss on the statute. Anybody interpreting the word ‘require’ in the wording of the statute as now incorporating those principles is just wrong, or that a Judge is expected to answer a question about whether “nothing else will do but adoption” is wrong.

52 (1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— .

(a)the parent or guardian cannot be found or is incapable of giving consent, or .

(b)the welfare of the child requires the consent to be dispensed with.

Re B-S is thus, presumably, case management guidance rather than law. One wonders, if that’s the case, why it wasn’t all set out in a Practice Direction rather than a judgment, given that the primary author of Re B-S had the power to do that. [I don’t believe for a second that Re B-S wasn’t intended as an authority that Judges who failed to properly engage with proportionality and necessity and the Re B principles would be at risk of appeal]

I will give a caveat to all of this – I’m sure that there were very good Judges up and down the country who were grappling with these issues in their judgments before Re B, and were properly considering the pros and cons of adoption and were not doing as criticised in Re G by a linear process of “if I’ve ruled out mum, dad and grandparents, what is left is adoption, so adoption IS the last resort”. For those very good Judges, Re B and Re B-S didn’t really change the way they were doing those judgments and making their decisions. But it was very plain from the volume of successful appeals that there were Judges who weren’t.

(And I don’t think that those were bad judges or flawed judges – it was rather that it had become general practice to use that linear model and it was only once McFarlane LJ highlighted the inherent flaws in it in Re G that some shifted. From the published judgments that I have read on Bailii in the last year, a surprising number of placement order judgments still fail to do that and simply replace analysis by quoting large chunks of the caselaw and saying “I have considered this” thus failing to see the point that the Court of Appeal appear to have been making in their condemnation of stock phrases and judicial window-dressing)

Were Re B and Re B-S new law, a fresh interpretation of the word ‘requires’ in the statute, or a gloss? Or were they as is being suggested now, a reinforcement and reminder of the existing law containing nothing fresh other than case-management guidance? We could dance on the head of a pin forever on that one.

If it was nothing fresh, it is surprising that so many successful appeals were happening last autumn and winter …

Back to the Court of Appeal in this particular case.

The words of Lord Nicholls in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [20012] 1 WLR 258 cited with approval in the Supreme Court in Re B remain apposite:

“[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.”

This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. In M-H (A Child) [2014] EWCA Civ 1396 Macur LJ at [8] said:

“…I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215)….”

In Re M (A Child) (Long Term Foster Care) [2014] EWCA Civ 1406 Black LJ said:

“What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at [77] of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be the last resort, because the interests of the child would self- evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. ” (my emphasis)

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests.”

With respect, I agree.

It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it.

My answers to the questions posed by Mr Rowley are as follows:

a) The judge’s methodology was right. She conducted a fact finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.
b) The statutory tests are not re-drawn. ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.
c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.
d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.
e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

I think the CoA go further here than in the last two cases – in those, there was still a concept that “nothing else will do” being a test, albeit a more nuanced test in which the words meant “nothing else that will properly meet the needs of the child”

Here, they say explicitly

The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available

That’s not saying that the Court rejected the other options, or ruled them out, or concluded that they were not capable of meeting the child’s needs. That is outright saying that even with a reasonable and available option, adoption can still be the choice of the Court.

Although in saying

Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

And

It was not a decision that one of two options would do.

Are they in fact saying that there WASN’T a judicial acceptance that long-term fostering was capable of meeting the child’s needs and that the Court was just approving the plan of adoption by rejecting all of the other options and that long-term fostering was not a plan, but a contingency in the care plan that the Court wasn’t required to consider?

That’s one way of reading the Court of Appeal’s answers to those questions which still IS compatible with the nuanced / glossed “nothing else will do” (there is no other option that is capable of meeting this child’s needs in a satisfactory way). I wouldn’t have much quarrel if the case had been decided in that narrow way – it seems to me that you could resolve it by deciding that adoption was the plan, making a Placement Order and advising the LA that a revocation application should be lodged if the plan is formally to be changed.

Let us be honest, in a care plan of “search for adoption for 6 months, if unsuccessful long-term foster care”, which of those two things is the ‘last resort’? It isn’t adoption, that’s the first preference. Long-term fostering there is the last resort. When the Court makes a Placement Order in those circumstances, it really isn’t saying that adoption is the last resort; it is saying that adoption is a better way of meeting the child’s needs than the other available alternative. [Which arguably just falls under s1 of the Children Act and is a good thing, but in that case, the talk of ‘last resort’ is a sham]

Why, one might almost think, if one was very cynical, that the fact that Re B looked like it was heading for the ECHR led the Court of Appeal to take pre-emptive action to bolster adoption before any ECHR decision “look, we’re being proportionate!” and now that we know Re B isn’t going to the ECHR and the practical import is being seen, there’s a backtrack.

I mean, I myself am not that sort of cynical person, so that of course isn’t what’s happened.

What has happened is that we naughty, dastardly lawyers have deliberately confused the Supreme Court and Court of Appeal saying that for the wording of the statute, “requires” means literally nothing else will do, and taken that to be a test to be followed, whereas all they meant was the quality of evidence needed for a Judge to be satisfied that the child’s welfare ‘requires’ that parental consent be dispensed with is higher.

And all of those successful appeals based on that point were… I’m afraid that my imagination is breaking down there and I can’t find a plausible explanation why those appeals were allowed if the position really is and always was what the Court of Appeal now say.

Why weren’t they rejecting all those appeals and saying “no, people have got this wrong, nothing else will do doesn’t mean that at all?”

If we can be honest again for a moment, imagine that a Judge in a Placement Order case in September 2013, or even September 2014 had said “I have been referred to the cases of Re B and Re B-S, but I don’t need to follow those and I am sticking to the law exactly as it was in 2012” would the Court of Appeal have backed that

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Posted in adoption, case law and tagged altering the nothing else will do principle, blackburn, blackburn adoption case, cm v blackburn 2014, contingency plan, Court of Appeal, dual planning, gloss on statute, nothing else will do, placement order, Re B, Re BS, ryder lj, test for placement order. Bookmark the permalink.

We are all unquantified risks

Posted on August 2, 2014 by suesspiciousminds

This was a permission hearing, Re B and P 2014 heard before Ryder LJ

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1133.html

There were a number of features which made the permission hearing difficult, not least that the parents, their McKenzie Friends and the Court did not have any of the papers from the care proceedings, save for a transcript of the judgment.

So, Ryder LJ listed the case for a rolled-up appeal (the permission application first, and to go on to an appeal if successful)

Why did nobody have the court papers?

Well, the parents were in person, and their solicitors had sent the bundles off to the cost-draftsmen (if you aren’t a lawyer, that will be meaningless, so by way of explanation it means that in order to get paid, the lawyer has to send all of their papers off to a specialist who then draws up the detailed bill to send to the Legal Aid Agency, who then sit on it for nineteen months and then pay an arbitrary amount that bears little relation to the actual bill)

The parents had asked the Local Authority to give them a copy of the bundle and the Local Authority had refused.

Now, the Local Authority weren’t at this appeal hearing, so I don’t know their side of it. It might potentially be that there was felt to be some very good reason why it would be unsafe for the parents to have those papers. Hopefully it is some legitimate reason and not just being awkward. I suspect if the reason was just ‘it’s not our job’ or ‘why should we do it?’ or ‘get it from your own lawyers’, that’s not going to cut it with the Court of Appeal.

The parents appealed on six points, two of which Ryder LJ kicked out straight away, but he was interested in some of the others.

[From the reported facts of the case, I am reasonably sure that the judgment that was being appealed was Parker J in Hertfordshire
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2159.html – there are SO many similiarities, it would be hard for it to be coincidence. Not least because both cases involve a father being convicted for assaulting a social worker and a dispute about a religious naming ceremony]

Mrs Haines, representing the parents as a McKenzie Friend, puts the nub of the case very neatly

The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?

The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?

This is a peculiar one, since despite a previously unfortunate history, it appears from the judgment that assessments were such that the parents were given an opportunity to care for their new child at home and it was the father’s violent outbursts to professionals which led to the shift in plan from placement with parents to adoption.

So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?

A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.

In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

I don’t know yet whether when the Court of Appeal tackle this case in full, with all the papers, and hearing from the other parties, the final outcome will be very different to Ryder LJ’s take, but it certainly raises an important and interesting aspect.

If the sole concern is that a parent is not co-operating with the Local Authority (even violently not co-operating), what is the risk to the child that justifies the State assuming care of the child?

There are some people who are violent to their partner and their child, and that bleeds into their violent outlook on life and approach to professionals. There are people who betray their violent tendencies and nature by the manifestation of their temper, and one learns of the risk that they would pose to others close to them.

But there are some people, maybe not many, but some, who just violently dislike social workers and are not afraid of saying so, but would pose no risk of violence to those around them.

This appeal might answer the question – if you’re not harming your child by doing so, are you entitled to be vile to social workers ?

If it does answer that question, there will be a lot of people interested in it either way.

There are two different perspectives here

(A) That the father was the protective factor against the established problems the mother had in providing care for a child, that he would need support from professionals and how can that support be provided if he is assaulting them physically when they visit?

OR, conversely

(B) If the major problem that the father has only happens when social workers visit, then it is solveable by just not having social workers visit.

It has tricky socio-political consequences, if the Court of Appeal do answer this point (and don’t hold your breath – remember that Re B went to the Supreme Court specifically to resolve the vexed question of emotional harm and completely ducked the issue)

If the Court of Appeal were to find that (A) is the right answer, then parents and campaigners will feel that this is carte blanche for social workers to cultivate a bad relationship with a parent and then rely on that same bad relationship as reason why the child has to be removed.

If the Court of Appeal were to find that (B) is the right answer, does that give a green light for parents to abuse and intimidate social workers?

Which is why I suspect a way will be found to duck the points that Ryder J raises.

[If there was a bet to be had on the outcome of this appeal, the sure thing is “If a parent or their McKenzie Friend asks the Local Authority for a copy of the court bundle to assist in an appeal, the Local Authority MUST provide it” (and probably that the LA must also produce appeal bundles and copies for the Court too) ]

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Posted in case law and tagged appeal, bundles for appeal, Court of Appeal, does a failure to cooperate amount to harm? Re B and P 2014, hertfordshire, mckenzie friend, parker j, ryder lj, should a Local Authority provide a parent with a copy of the court bundle?, violence towards a social worker. Bookmark the permalink.

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Tag Archives: ryder lj

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Removal from grandparents under Interim Care Order

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