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“…such obviously fallacious legal arguments”

 

 

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

 

pause, deep breath

 

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

 

 

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

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

The threshold criteria expresses that

 

Section 31 (2)

 

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

 

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

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

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

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

The bruising was noticed on 13th May.

 

 

 

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

 

 

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

 

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

 

 

 

 

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

 

 

 

 

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

 

 

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

 

 

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

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

 

 

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

 

 

 

 

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

 

 

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

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

 

 

 

 

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

 

 

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

 

 

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

 

And later:

 

 

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

 

 

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

 

 

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

 

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

 

Further exchanges included (in telescoped form):

 

 

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

 

 

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

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

 

 

 

 

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

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

 

 

 

The Judge’s decision

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

 

 

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

 

 

 

 

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

 

 

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

 

 

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

 

 

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

 

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Judge removes child from disabled mother over costs of care

 

 

This is the headline from the Daily Telegraph story. And rightly, we’d be appalled by this. If the reason for the child not being with mother is that it is too expensive to keep them together, that would be dreadful.  It would also have been appealed, so immediately one thinks that there must be a bit more too it than that.

The impression from the headline would be that this was about it costing too much to give the mother some practical help with the child’s care, because there are things that she can’t do alone as a result of her disabilities (you might be thinking that she needs special equipment to bath him etc)

http://www.telegraph.co.uk/news/uknews/law-and-order/11842893/Judge-removes-child-from-disabled-mother-over-costs-of-care.html

A five-year-old boy has been removed from his disabled mother’s care as a judge dismissed an allegation of ‘social engineering’ despite ruling it would cost too much to keep them together.

The family court judge ruled that the child must be taken from the care of his disabled mother claiming her disability made it impossible for her to meet her disabled son’s needs by herself, and the level of local authority support she would need would be too extensive.

 

 

Here’s the judgment, Re T (a child) 2015

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B123.html

 

I don’t think the Telegraph piece is a bad bit of legal reporting. It isn’t a particularly accurate headline (which is a shame, since the headline here IS the story), but I know that journalists get their suggested headline changed to make it more arresting/compelling/clickbait-worthy, so I don’t blame the journalist for this.

The journalist had obviously taken the trouble to read the judgment, since she quotes bits of it. Rather a shame that she doesn’t link to it, because if she had, anyone reading past the second paragraph would see that the triggering incident for the care proceedings was the father of the child sexually abusing the child’s brother. Which casts a different light on things – there’s obviously rather more to it than just the mother needing help and support and said help and support being too expensive.

 

Readers can look at the judgment for themselves  – I don’t think it is beyond reproach – there’s nothing really which conveys to a lay person who doesn’t know all of the background in plain English what this mother could or could not do.

Sadly the Local Authority’s case is that despite her best intentions and obvious love for her son, CB is not able to offer good enough care for T and that his needs, which are heightened on account of his developmental delay, will simply not be met in her care. From the outset the social worker has made plain that CB has not intentionally neglected or harmed T. The Authority acknowledges that T is clean and well presented; it is the more nuanced aspects of parenting that are beyond CB’s capabilities.

 

They are so nuanced that I don’t feel that they are fully spelled out in an otherwise careful and balanced judgment. The nearest it comes, in my reading is:-

 

 She was able to provide basic care skills and T was always well presented and she was ready to acknowledge the fact that this could be in some way due to the absence of MB and she was able to concentrate on T. She observed warmth from the mother so far as T was concerned but remained concerned that strategies and suggestions were not sustained. Crucially T’s care required someone to “forward think for him” and she did not think that the mother had that capacity saying that the mother does not possess the skills, the knowledge and the understanding to provide anticipatory help. This could not be achieved unless somebody was with her all the time.

 

and

 

I record that Dr Tagart’s views at this stage namely:

“[T] requires an emotionally attuned adult to provide his care; this person or persons will need to be able to provide warmth, boundaries and model appropriate behaviour. They will require a high degree of patience because T will require many opportunities in order to acquire skills and concepts.”

 

 

[Personally, I would have preferred something much more concrete – I note that the mother in this case had an IQ of 69 and everything that we know about people with that level of functioning suggests that real, concrete examples are better than abstract theoretical concepts, so given that I can read this judgment and have very little idea of what it is said that she can’t do is put into sharp focus that it must have been really hard for these parents to understand what they were doing wrong]

 

 

On the issue of whether there was a package of support that could be put in place for the mother to help her meet the child’s needs, the expert opinion was this

Dr Blumenthal was also clear that mother’s level of disability needs a supportive partner who would be present for most of the time and it was likely that given T’s entire developmental trajectory over the next 12 years he would need more than he is getting now.

 

 

Whatever the mother’s problems were, the Judge was satisfied that they could only be addressed by another person living with her at all times.  Given what I said at the outset about the child’s father, he clearly isn’t an option.

That would mean that this wasn’t really a case about providing support and the support being too expensive, but about the issue in principle of whether once the level of support is “Another person being paid to live with mother and child, and that person to care for the child for the next 10-13 years”  that is reasonable or too high.

 

The Judge looked at all of the powerful caselaw about keeping families together and made his decision

 

 

 

 

 

 

  1. Conclusion and findings
  2. There is unanimity in this case amongst the experts, the social worker, the local authority assessors and the guardian that despite the mother’s very best intentions and unconditional love and commitment to T, mother is not able to offer good enough care for T. I accept that evidence. He has a high level of need as a consequence of his developmental delay which simply cannot be met by the mother who has difficulties herself for all the reasons I hope that I have set out carefully in this judgment.
  3. There is no suggestion that CB has intentionally neglected or harmed T and his basic care is good enough. T is always clean and well presented and CB has done her utmost to meet T’s needs.
  4. One of the major issues in this case has been to the extent to which it would be possible for the local authority in providing support to the mother to care for T could effectively make up for her deficits and for T in that way to be provided with good enough parenting. It has been suggested that to remove T from his mother’s care and provide an optimum level of parenting by adopters or long term foster carers is in effect a feature of social engineering.
  5. I reject that proposition that make the following findings:

    1. The level of support that would be required in relation to such an arrangement would be so extensive as to be detrimental to T’s welfare.

    2. The mother due to her high level of anxiety has found it difficult in the past to fully engage with the extent of help being offered and although proceedings may have finished would be ever fearful and anxious regarding local authority involvement which in turn would devolve on T.

    3. T needs better than good enough parenting and if he does not receive it then the harm identified by Dr Mallya would intensify. The gap between his chronological and developmental age is already widening while in the care of the mother. Continued care by her would cause him continuing and increasing significant harm, albeit entirely unintentional.

    4. T’s welfare needs requires him to be removed from his mother’s care and continued care by her in the home environment will be harmful to him and he will not be able to reach his potential as his mother is unable to promote his development consistently. This would have an impact on the opportunities available to him in later life. I find that although there is little doubt that T is the centre of the mother’s firmament she has been unable to consistently implement the advice and strategies that professionals have offered but, to her very great credit, has made some progress since she was T’s sole carer since the autumn of 2014.

  6. The fundamental principle in cases of this sort is that there is a duty imposed on the court to make such order that accords with the paramountcy of T’s welfare. There is, in my judgment, nothing in our existing case law that undermines this fundamental principle and the words “nothing else will do” does not and should not exclude the overriding welfare consideration in relation to any particular child’s case. The issue in this case has been the capacity of T’s parents, and most particularly CB, to satisfy his overwhelming welfare needs for the duration of his childhood and indeed, his life given the nature of his disability.
  7. My task is to establish that there is proper evidence from the local authority, the experts and the children’s guardian which addresses all the realistically possible options for this child. I have to scrutinise any analysis of those options. I am satisfied that proper evidence is before the court in order to enable me to do so and that includes the evidence of course from the parents themselves.
  8. Having reviewed all the evidence I am satisfied that I have all that is necessary to set out in this judgment the rigorous analysis and comparison of the realistic options for T’s future that our law requires.
  9. I record the mother’s absolute sincerity in wishing to care for T but unfortunately this conflicts directly with his welfare interests and this is directly connected to her own level of functioning. The risks to T in terms of his future welfare of remaining in his mother’s care are just too great and not manageable in terms of additional local authority support for the reasons that I have articulated.
  10. I have little doubt, and I say so with great sadness, that the judgment that I gave at the end of April has disqualified any prospect of MB and CB caring for T together. CB has told me how sad it is that they are not all together and I have enormous sympathy for that sadness.

 

 

I think that there are valid criticisms of this case (and this is not a particularly awful example, it is representative of a larger problem), that the process in family justice can lead to language being used in an opaque way with jargon and theoretical concepts rather than hard, clear, obvious and compelling plain English that says “the mum can do this, but she can’t do THAT”

 

This story from Community Care illustrates the point

 

http://www.communitycare.co.uk/2015/08/05/social-worker-criticised-judge-using-jargon-court-report/

 

The judge quoted paragraphs of the assessment where, he said, the language obscured the meaning:

“I do not intend to address the couple’s relationship suffice it to say it is imbued with ambivalence : both having many commonalities emanating from their histories that create what could be a long lasting connection or alternative relationship that are a reflection of this. Such is this connection they may collude to undermine the placement.”

“Due to [the grandmother’s] apparent difficulties identifying the concerns , I asked her to convey a narrative about her observations in respect of [the mother and father’s] relationship.”

Quoting the second paragraph, the judge asked: “What would be wrong in saying ‘I asked her to tell me’?”

He also questioned multiple uses of the word “interplay”, for example: “[the grandmother] clearly believes that paternity issues had a significant interplay on [the father’s] ability to say no to the mother.” He said the word ‘impact’ or ‘effect’ would be more understandable

 

 

Hell yeah to that.

 

In this case, this use of language in a way that is opaque on the key issue of what mother could do and what she could not do that led to a conclusion that she needed another adult present at all times is additionally worrying, because these proceedings had actually concluded a year earlier with the child staying with mum under a Supervision Order. The Local Authority brought the case back, saying that mum had not been able to do as well as they had hoped.

So one would imagine that this could be spelled out with some very clear examples.

[To be fair, it may be that this is all set out in the threshold document, which sadly just gets dealt with like this :-

I have looked at the local authority final threshold document. It is evident of course from the findings that I made in the judgment of 29th April that threshold is crossed for the purposes of s.31 of the Children Act. I have carefully balanced the accounts of the parents with conflicting accounts of the local authority and the experts and having done so find that numbers 1 to 4 and 7 to 10 of the local authority’s final threshold document are proved to the requisite standard.

 

That’s fine for those who were present and have it in front of them, but the absence of specific findings about mother’s care since the Supervision Order was made leaves this judgment a bit lacking in that one regard, that a reader can’t easily work out what this mother is said to have done wrong. And without that, it is hard to decide whether you think it is a fair conclusion or not that she would need someone else living with her in order to care for the child.

 

As I said at the start, I don’t think that it is a bad piece by the Telegraph – the headline leads you to think that this was a question of money and penny-pinching and that’s not a fair reflection of the case. There is a legitimate grumble about this case that one simply can’t read it and work out what mother could not do, the language there is flowery and conceptual rather than practical.

Composite threshold documents – in which, a tightrope is walked

 

Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.

 

Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…

 

Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.

 

Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)

 

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

 

A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.

 

I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]

 

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

 

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

And the composite threshold document then becomes.

 

Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.

 

Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?

 

This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.

 

For example, here are three acceptable composite documents.

 

The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding

 

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

 

So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.

 

The Judge deals with this without the need for fox and dog imagery.

 

  • As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

 

Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.

 

Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

 

Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…

 

 

 

Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

A tottering edifice built on inadequate foundations

The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

 

(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)

 

Skipping ahead to the core analysis and decision on threshold and the applications:-

 

  1. I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:

    i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.

    ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.

    iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.

    iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

    As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.

  2. What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
  3. In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
  4. I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

 

And later

I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.

 

 

A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority”   (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)

We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.

  1. On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:

    “Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”

    Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.

  2. The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.

 

The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that

 

  1. It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
  2. Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
  3. CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.

Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-

1. Could those things be proved? And proved properly, not merely relying on hearsay?

and

2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?

To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.

In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:

“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …

Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”

 

That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.

The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?

  1. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
  2. The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
  3. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
  4. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.

 

That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here

 

9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

 

and then in paragraph 10

The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

  1. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.

12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’  – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test.  “seemed”, “appeared”  “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.

After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be  sharply focussed on:-

This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.

 

As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to.  These things may have some value  (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.

 

I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.

 

Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.

  1. In her statement SW1 returned to the same theme. I need set out only the key passages:

    “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …

    … it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”

  2. In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
  3. As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
  4. If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.

 

The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis

  1. It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
  2. I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

 

Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…

I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.

 

This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.

This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.

If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.

Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.

Lies and the Lying Liars who tell them

 

A discussion of Re B (A Child) 2012

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1475.html

 

 

I think this case is of interest, and it certainly interested two of the Appeal Judges, because it looks in quite a lot of detail at the intersection between odd, unusual and peculiar parenting and significant harm where the State has to intervene.

 

 

The case is rather neatly summed up by these two passages, firstly from Lewison LJ’s  judgment :-

 

  1. I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”

  1. Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?

 

And then from Rix LJ’s judgment

 

However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk

 

 

I know, from the comments I get on this blog, that emotional risk  or emotional harm is the area that concerns many of them the most. It feels nebulous and vague and tenuous, and rather as though it could catch anyone in the net and snare them, if they just happened to fall foul of the State.  And of course, it is the one area of child abuse that couldn’t  result in criminal proceedings being brought – what the parents are alleged to have done is not treat their child in an illegal way, but just an improper one.

 

 

Let’s have a look at the harm that the LA alleged was posed by these parents

 

 

  1. The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.

There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.

[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.

[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”

  1. As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:

i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;

ii) The apparent difficulties in M’s relationship with AE;

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”;

v) The problem created by social services and other professionals being unable to rely on the truth of what M says;

vi) F’s long history of criminality and drug use;

vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;

viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

 

 

 

Apart from the issue of father’s drug abuse, of which not much seems to be made, the rest of this seems to boil down to  ‘the mother is a pathological liar’ and that might bring about harm to the child.

 

Whilst the totality of the case makes it pretty clear to me that there were sound reasons for believing the mother to be a pathological liar, and the Court of Appeal were very complimentary to the way that the trial judge had carefully sifted and weighed all of the evidence,  I have to confess that I am struggling for concrete risks that having a pathological liar as a parent causes to the child.  Some of the lies she is reported to have told are bizarre, odd and strange, and it is not a massive leap to suggest that a child exposed to them might find it bizarre, odd and strange that such lies were routinely told by a parent. But, I’m not sure that amounts to significant harm, or risk thereof.

 

There’s a hint at it in this line :-

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

 

which implies that mother’s pathological lying might extend to making up illnesses or need for treatment of the child.  In part because some of her pathological lying has manifested in her lying about her own medical situation to get attention. So it might transpose to the child (back at Munchausen by proxy again).

 

Well, it might.  They don’t say that it HAD done this, and if it HAD, the LA would surely have been relying on it, and I think that’s a bit of a stretch.

 

It seems to me that this risk could be pretty comprehensively managed by the GP and local paediatric department being alerted to mother’s somatisation disorder, which presumably they had on the files about her anyway, so they would know not to take everything she said about A’s health at face value.

 

 

 

There is an interesting criticism of the Guardian by the original trial judge, which I think flows from working practices rather than any poor work on her part as an individual  (yes, I am back on my Homeopathic Guardians hobbyhorse)  – although the fact that in the previous paragraph she had not understood the limitations of an Interim Supervision Order was pretty troubling.

 

 

Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.

 

 

 

On threshold, this was the passage where the Judge decided whether it had been crossed

 

  1. Judge Cryan said [189]:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.”

 

 

The parents appealed, relying in large part on the doubt that the behaviour alleged by the LA, could (even if proven) constitute a risk of significant harm.

 

I liked this passage from their submissions

 

  1. Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.
  1. They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.
  1. In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions) [2007] 1 FLR 2050 (see below), they said:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

  1. They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.

 

 

And I have to say, I don’t really disagree with any of that.  To this point in the judgment, I am still struggling to see what transforms this from being a child who will be brought up in an odd, unusual and possibly downright peculiar environment to one who would be significantly harmed by the parenting she received.

 

 

 

 

 

 

 

 

 

 

This is how Black LJ squared that particular circle

 

 

  1. Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.
  1. Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.
  1. The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).
  1. The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.
  1. Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty [192] in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.
  1. The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.
  1. I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert [22]. In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” [131]. The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted [165], giving examples which substantiated this assessment.
  1. F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.
  1. The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct [54]. It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times [177] and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant [196]. Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” [199].

 

 

You may, like me, still be at the  ‘it is all pretty unsavoury, but am still not sure it crosses threshold and results in adoption, because it still boils down to being mum is a lying liar’ point

 

Black LJ presses on

 

  1. Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at [155] that the “highly undesirable isolation of the E household comes to mind”.
  1. It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.
  1. In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.

 

 

Nope, I’m still with the parents on this. The two other Judges basically came down to saying that the trial Judge could not be said to have been plainly wrong, though hinting that they might have reached a different conclusion, and the appeal was refused.

 

My gut feeling, and of course seeing the full case and hearing all of the evidence is an entirely different affair, is that on the headlines of what is alleged to have given rise to threshold, I don’t believe threshold is met. But I am wrong, because the Court of Appeal have decided otherwise.

 

I don’t think we have seen the last of risk of emotional harm as a topic ripe for litigation and clarification.