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In the pool or not in the pool?

 

This reported case is a Circuit Judge decision, so not binding on any other Judges, but it is interesting and raises a potentially important issue.

C (Interim threshold not crossed) [2019] EWFC B5 (15 February 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B5.html

 

A child C, was 6 1/2 and had lived, for all but four months of his life, with his maternal grandparents, who held a Child Arrangements Order.  C’s cousin, D, was admitted to hospital with fractures to both legs, she being a non-mobile baby.  A police investigation was taking place in relation to D’s injuries. As part of that, the police informed the Local Authority that for a period during the time when those suspicious fractures had occurred, D had been spending time with the grandparents.

 

In the vernacular, the grandparents  (whilst by no means the main suspects for those injuries) were in the ‘pool of perpetrators’   – or were they?

  1. On 8 th October 2018, [the] police apparently advised the local authority that C should be removed from the care of his maternal grandmother and placed with his aunt R, while further and urgent investigations were undertaken.  The grandparents reluctantly gave their section 20 consent to this, feeling they had no option.  The local authority applied for emergency protection orders for D and her brother E on 11 th October, and subsequently care proceedings were issued.  Those two children are subject to interim care orders and are currently in foster care.  HHJ Owens has listed a fact-find hearing to determine the cause of D’s injuries, due to take place in the week before and after Easter, in April 2019.  

 

The LA issued care proceedings for C  (I don’t know that I would have done that, prior to a decision being made about D’s injuries, but the LA were obviously worried that C’s carers may have been responsible for such serious injuries to a baby.  It rather depends on whether that’s a theoretical possibility that they might have been responsible based just on timing, or some evidence that pointed more strongly towards them)

The Court had originally made an EPO and later ICO for C.

 

This was the judgment from a later contested ICO hearing.  It was complicated further because the LA were proposing that C be placed with his father (who was not involved in D’s life at all and thus absolutely not under any suspicion about D’s injuries)

 

#spoiler alert – the title of the case rather gives away the judicial decision, but read on to find out why.

 

An argument deployed at Court was that the Court, faced with a father and grandparents, could apply a private law filter to the case and decide which placement was better for the child in the interim while D’s injuries were being assessed (in effect, a ‘beauty parade’ exercise)

 

The Court, rightly, did not agree. The legal position had to be that the child be with grandparents unless the LA could satisfy the Court that there were reasonable grounds to believe he was likely to suffer significant harm in the grandparents care and further, that the risk of harm was such that C’s safety required separation from the grandparents.

 

 

  1. I have found this application difficult to determine because it was initially presented to me as a simple exercise of my discretion in respect of weighing up the pros and cons of two competing placement options, but, for the reasons I have given, I do not regard that as the correct approach as a matter of law.  I am grateful to all counsel who have shown flexibility in dealing with the issues that were troubling me, but I have received no written submissions about the question of interim threshold, and no evidence or submissions in respect of the application of the welfare checklist.  Because there has in my judgment been inadequate formulation of the nature of the risk that each of the grandparents is said to present to C, there has been inadequate consideration as to how those risks might be contained so as to enable C to continue to be cared for by his grandparents.  The case law is clear that the key to any application for an interim care order in which it is proposed that a child is separated from his primary care givers is proportionality.  I have had no evidence or submissions to enable me to consider whether the course of action proposed by the local authority is necessary or proportionate in safeguarding C’s welfare.

 

Threshold

 

  1. The threshold document is very short on factual detail and does not explain why it is said that C, who it is accepted has never suffered any harm in his grandparents’ care, is at risk of significant harm from either of them

 

  1. Paragraphs one to nine set out the history of D’s admission to hospital and the local authority’s concerns about the care she and her brother E received in their mother’s care. 

 

  1. Paragraphs 10 to 16 concern the grandparents, although there is not a single specific allegation against the paternal grandfather. 

 

  1. At paragraph 10 it is said that E has spent a considerable amount of time in the care of his maternal grandparents.  It is then pleaded:

 

The maternal grandparents have, therefore, had, at the very least, very regular contact and extensive contact with their grandchildren and have failed to protect them from suffering significant harm.

 

  1. There can be no doubt that D has suffered significant harm.  However, this paragraph does not plead when either of the grandparents had regular or extensive contact with D, or in what way they should have acted in order to prevent her serious and significant injuries.  The threshold document does not identify which, if any, of the injuries allegedly sustained by E amount to significant harm.  It is not pleaded in what respect either of the grandparents should have prevented his injuries being sustained.

 

  1. At paragraph 11(a) the local authority pleads that it considers that C would be at immediate risk of significant harm if he returned to the care of his grandparents at this time, because:

 

(i)                  D’s treating clinicians consider that her injuries were inflicted non-accidentally;

(ii)                None of the adults who had care of her or were in contact with her at the time have been able to provide any explanation for the injuries;

(iii)              The paternal grandparents and extended family, are reluctant to acknowledge the possibility of the injuries being inflicted non-accidentally … and show a lack of acceptance around the severity of D’s injuries and the need for local authority involvement with the children.

 

  1. In my judgment, this paragraph fails the President’s test in Re A .  It does not set out why the A + B + C of D’s injuries and the grandparents’ reluctance to contemplate their being inflicted non-accidentally amounts to the X + Y + Z of an immediate risk of significant harm to C if he was in their care.  Within the evidence, I have not seen a specific reference to either of the grandparents suggesting that there should not have been local authority involvement with D.  There is a reference in the first social work statement to the maternal grandmother expressing her reluctance for C to be living with his aunt stating that ‘she had done nothing wrong’ , but if this is what is relied upon, it is not explained why this would mean that C is at risk of significant harm.

 

  1. It is not specifically pleaded whether either of the grandparents was caring for D or in contact with her at the time her injuries were sustained, or whether they were specifically asked to give an explanation or not.  If they were not there when the injuries were sustained I am not sure why they should be criticised for not having an explanation for their cause.

 

  1. If proved, showing a lack of acceptance around the severity of D’s injuries and the need for local authority involvement, is of course a valid concern in general, but in my judgment not on its own sufficient to stand as an explanation that C is at ‘immediate risk of significant harm’ from his grandparents.

 

  1. Paragraph 11(b) includes the statement that ‘one of the adults within the potential pool of perpetrators is the maternal grandmother’.

 

  1. It was repeated to me a number of times in submissions that the grandmother is in the pool of perpetrators’ .  She is not.  A person is ‘in the pool’ only after a finding of fact has been made to that effect.  I understand that an allegation has been made against her within D and E’s proceedings, but findings have not yet been made.  The threshold is for the local authority to prove.  If the grandmother is alleged to be in the pool of perpetrators as part of these proceedings, it is not because she accidentally found herself there, or someone else put her there, it must be because the local authority positively asserts that she had the opportunity and the motive to cause these very serious injuries, and that she was there at the time the injuries thought to have been sustained.  In support of its assertion, and in order for the Court to come to the conclusion that there are reasonable grounds to believe that C is at risk of suffering significant harm from his grandmother, the local authority must spell this out in its threshold document and provide evidence in support. 

 

 

(*On first reading, I thought that HHJ Vincent was saying a person is only ‘in the pool of perpetrators’ if a finding of fact about the injury has been made, but he is saying that actually a finding of fact has to be made that ‘X and Y and  Z are the people who could have caused the injuries to C, if the Court later goes on to find that C was injured deliberately’  – that doesn’t usually arise, because the issue of whether someone is ‘in the pool’ is not itself contentious.  But of course here, and in any case where a child is potentially being placed with family members whom the LA assert may be ‘in the pool of perpetrators’ – the issue really should be whether the LA satisfy the Court that this person is reasonably likely to be  ‘in the pool’ and they are not just placed ‘in the pool’ on the LA’s say so.  The remarks about ‘motive’ are interesting, because there’s barely ever evidence as to motive in physical harm to children.  But of course, it is relevant for the Court to consider a 6 year period of problem-free care of C, the limited time the grandparents would have spent with C and lack of evidence as to say  – substance misuse, anger management, violence, or being overwhelmed or frustrated, because those are the usual causes of physical abuse – it is very rare to see actual evidence of sadistic intent)

  1. I have not found any other evidence within these proceedings to suggest that the maternal grandmother had care of D in the week or so before her admission to hospital.

 

  1. Nonetheless, SW still asserts in her conclusion that ‘MGM is currently in the pool of perpetrators for causing injuries to D and/or failing to protect her’.

 

  1. A perpetrator does not fail to protect, they perpetrate.  The pleaded allegation is that MGM is in the pool of perpetrators. 

 

  1. I am unaware of what is pleaded against MGM in the proceedings concerning D and E, and I accept there may be specific allegations and evidence that puts her in the frame more clearly.  However, I am concerned with C, and the pleaded threshold document in respect of him.  The threshold document does not explain upon what facts it relies to suggest that the grandmother could reasonably be believed to be in the pool of perpetrators, and scrutiny of the local authority evidence in this case does not assist. 

 

  1. At paragraph 12 it is pleaded that D’s injuries are so severe, ‘with no explanation as to causation and no clarity, at present, around the possible perpetrator, that the local authority does not consider that it can be safe for C to return to his grandmother’s care’. Again, this allegation does not explain why it is that the severity of D’s injuries and the fact of the perpetrator remaining unidentified pose an immediate risk of harm to C from his grandmother. 

 

This next paragraph,  it took me a while to work out who “Q” was – it is the mother’s partner.

 

  1. At paragraph 13 it is alleged that the presentation of the maternal grandmother and mother’s presentation at the hearing of the EPO were ‘extremely alarming’.  They were seen to physically and verbally restrain Q by sitting on him and putting their hands over his mouth, while he clenched his fist.  This allegation may well need to be explored further, but whether true or not and whatever the reasons for and the significance of this behaviour is, again, the threshold document does not explain why this means that C is at immediate risk of significant harm from his grandparents. 

 

 

 

In conclusion

 

 

Is interim threshold crossed?

 

  1. I have looked at the threshold allegations carefully. 

 

  1. I have considered all the evidence in the bundle and I have listened carefully to the oral evidence of Y and of the guardian.

 

  1. I am not satisfied that threshold is pleaded with sufficient clarity to set out why it is said that either the maternal grandmother or the maternal grandfather present an immediate risk of significant harm to C.  I have reviewed all the evidence and I am not satisfied that there are reasonable grounds for believing that on the date protective measures were taken, C had suffered or was at risk of suffering significant harm as a consequence of the care given by his grandparents, which or that the care given by them was not the level of care one would reasonably expect a parent to give.

 

  1. I do not accept that asserting repeatedly that the grandmother is in the pool of perpetrators with respect to D’s injuries, and being concerned that there is insufficient information and clarity around the circumstances of D’s injuries is sufficient to form the basis of a threshold allegation against the maternal grandmother. so far as C is concerned.  If the local authority wishes to put forward a positive case in respect of the maternal grandmother then it is required to set out in the threshold document what facts are relied upon and then to provide the evidence in support of its contention.  They have not done so.  The evidence is at best equivocal.  While at an interim stage there is of course no requirement to prove the section 31 final threshold is crossed, there must be evidence to satisfy the Court that there are reasonable grounds to believe the section 31 circumstances exist.

 

  1. There is no single specific allegation against the maternal grandfather in the threshold document.

 

  1. All the remaining allegations are generalised and none of them provides an explanation as to why it is said that the care that has been given to C or is likely to be given to him by his grandparents should he return to their care, is below what one would reasonably expect from a parent, and why it would put him at risk of suffering significant harm.  

 

  1. Because I do not find interim threshold to have been crossed, I have no jurisdiction to make an interim care order in respect of C and he should in my judgment be returned to his grandparents’ care.

 

  1. In reaching this conclusion I am not suggesting that the local authority’s concerns about the grandparents are baseless, and I accept that SW and the guardian have genuine concerns about the grandparents’ ability to work co-operatively with them, their insight and acknowledgment of the severity of D’s injuries and the existence and impact of domestic abuse upon their grandchildren.  However, the case law is clear, the local authority must meet a high standard when seeking to justify the continuing separation of C from his grandparents.  I must only consider making an order which interferes  with their right to a family life where the strict statutory grounds are made out.

 

 

 

 

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Shoe-throwing and Interim Care Order

 

This is a tricky case.  It involves an appeal to the Court of Appeal about the Judge’s making of an Interim Care Order in relation to four children aged between 8 and 2 1/2

 

Re W-J (children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146039

The mother in the case has what appears to be a form of personality disorder.  She accepts that there are times when she is utterly unable to control her temper and can fly into an unmanageable rage. Generally during these rages, she takes it out on inanimate objects.  She describes that the things that can set off these rages can be very trivial, giving the example of someone eating a packet of crisps loudly.

 

 

3…In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self control simply because she was irritated by the noise of someone eating a packet of crisps.

4. When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way

 

Whilst that must be distressing and upsetting, what prompted the proceedings was that on two occasions, things went further than that.

 

what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother’s behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother’s foot came into contact with the 7 year old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.

 

What the Court had to do at that interim care order hearing was to determine whether the test for separation had been made out, and whether the risks could be managed in another way, applying the least interventionist principle.

 

Three of the children were found placements within the family, which were a decent compromise. That left one child, T, and a decision had to be taken about whether she could stay with mother, somewhere, or go into foster care.

There is a law geek point about whether the Court could have made an injunction under the Human Rights Act 1998 to make the LA manage the risk by keeping mother and child together.  The Court of Appeal closed this down by saying that it wasn’t sufficiently argued before the Judge to be an appeal point, so it is not resolved  (for my part, I think that the order that the Court can make in that regard is the straightforward Interim Supervision Order OR to compel them to place in residential assessment, a section 38(6) direction, and there’s no need to monkey around with esoteric HRA injunctions, but there may be a better case where the point really does arise)

 

10. In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children) [2011] EWCA Civ 1009 and a decision of the High Court: Re: DE (A child) [2014] EWFC 6. In short terms, Ms Kochnari’s submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.

11. That describes the position of the parties, mother and local authority, before the judge. The children’s guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge’s perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.

12. But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that “heaven and earth” should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority’s books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother’s ability to provide day to day, hour to hour ordinary parenting, the concern being about her mental well being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.

13. So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order.

 

That left a rather stark choice

1. Grant the ICO and separate T from mother

2. Make no order / ISO and the child remains with mother at home

Or

3. Make no order, but adjourn for fuller enquiries about a placement that might have allowed a section 38(6) application for residential assessement to get off the ground.

 

The Court of Appeal set out why option 3, the adjournment, was not feasible

 

20. Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari’s favour I assume that was the import of her submission to the judge.

21. But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother’s behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother’s care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother’s behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.

22. The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.

23. With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T’s best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge’s decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.

 

 

What could, perhaps, have been done but that wasn’t expressly considered here was for the Judge to make a short order – say a week, to allow that search for an alternative placement to take place and then revisit if there was any way to safely manage mother and child together.

 

The Court of Appeal, whilst acknowledging how difficult a situation this was and expressing hope that a longer term solution to mother’s difficulties might be found so that the other very good aspects of her parenting could prevail, were driven to conclude that the Judge’s decision to make an Interim Care Order was not only not wrong but actively right.

 

27. We are therefore left with the judge’s decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother’s underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child’s welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge’s determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child. 

 

I’m sure that all of us would wish this mother well for the future and hope that a solution can be found that would let her parent in the way that she would wish to and be free of what must be a terrible inability to control those outbursts.

Removal from grandparents under Interim Care Order

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)

 

except maybe Eobard Thawne, the Reverse Flash

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:

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.”

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.

What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   https://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.