April 2014 Case Law Update
Re S (A Child)  EWCA 135
Appeal by father against care and placement orders that had been made in respect of his daughter in July 2013 on the basis that the orders were not compliant with Re B-S.
A-M was one of four children of the mother but was the only child of the appellant father. The father and his second wife had been positively assessed as carers for the eldest three children, including A-M. However, following concerns reported by the father’s second wife, a further assessment was carried out alongside an assessment of the children by a psychiatrist. In April 2013, the father did not oppose the possibility of the three older children remaining as a sibling group in foster care. Initially, this was supported by the Guardian but opposed by the local authority. In the alternative, the father put himself forward to care for the three children, or, if that were not possible, for A-M alone. By the final hearing, the Guardian’s position had changed and supported A-M being placed for adoption and her two older siblings remaining in long-term foster care. The father had by this time separated from his wife.
Macur LJ giving the leading judgment
The Court of Appeal was troubled by two aspects of the case against the father which had apparently been accepted by the trial judge –the weight placed on his lack of candour about his failing second marriage and the fact that he had shown the children a picture of his new baby in contact.
In respect of the former, whilst there was no requirement for family judges to formally articulate that they had given themselves the so-called ‘Lucas direction’, there was no evidence in this judgment of the judge even bearing in mind the significance that might or might not be attached to deceit by a parent in these types of proceedings. In respect of the latter, the Court of Appeal disagreed with the view of some of the professionals in the case (adopted by the judge) who had contended that showing the children a photograph could be regarded as evidence of not putting their needs first. These factors had apparently influenced the judge to a possibly unwarranted degree.
Taking into account the previous positive assessment of the father’s ability to care for three of the siblings, the changing circumstances of the children’s needs as assessed by Dr Yates and a subsequent expert, the Guardian’s varying stance and the change in the father’s domestic arrangements, the judge had erred in not ordering a further assessment of the father.
The unanimous view of the Court of Appeal was that the judge was wrong to make the placement order without further assessment of the father and in any event that she did not adequately articulate her reasons for making the order.
Appeal allowed, interim care order substituted and case remitted for further consideration. Costs awarded against the local authority.
Re M (A Child)  EWCA Civ 226
Appeal by the children’s guardian against the recorder’s decision to decline to make care and placement orders sought by the local authority. At a final hearing in care proceedings, the Recorder had declined to make the orders sought by the local authority and instead had made a residence order in respect of the child, S, to her mother and a supervision order to the local authority in whose area the mother intended to live. All other parties, including the local authority resisted the appeal.
The mother had had what the Recorder had described as a ‘fairly chaotic’ upbringing. Care proceedings were commenced following a referral from the police in relation to the domestic violence. By March 2012 they had decided that the appropriate care plan for S was one of adoption. The Recorder made a number of negative findings, including that the mother did not tell a consistent story, that she had not acted appropriately when she failed to inform the other parties at an earlier hearing about a new pregnancy, S had suffered emotional harm from witnessing domestic violence and the mother said inappropriate things to S. The mother had been criticised for not attending psychotherapy but the Recorder rejected this criticism because counselling that the mother had undertaken meant that she no longer met the criteria. She had undertaken 9 out of 12 sessions of the Freedom Project and the Recorder found that she ‘has done a huge amount, and much more than is often the case’. A number of positive findings were also made relating to the mother, including that there were no concerns about her ability to meet S’s physical needs and in respect of the relationship between the mother and S.
The Recorder also considered the concerns about the mother at the outset of the proceedings and found that, in relation to several of these, the mother had shown evidence of change. The Recorder recognised that he must be slow to disagree with the Guardian but he concluded that she had not been balanced in her report; she had failed to give any weight to S’s relationship with her mother, her wish to resume living with her and the importance of a child living with her birth family. He also found that the Guardian had failed to recognise any of the positive aspects of the mother’s capacity to care for S.
The Guardian did not challenge the Recorder’s findings but appealed on the basis that he had reached a decision that was not open to him on the findings of fact that he had made and that he had failed to weigh up properly the factors that were relevant to the welfare decision. The factors that were said to be of particular significance were:
- the mother had caused S emotional harm in the past;
- S was unwilling to be drawn into speaking about life with her mother and did not choose her mother to live with her on an island during an exercise that the guardian had carried out with her;
- contrary to the view of the Recorder, the Guardian submitted that there was no evidence that the mother had changed;
- the mother’s continued lack of candour meant that a supervision order was unlikely to work;
- There had not been the required analysis of the evidence about the resumed relationship with a former partner and there was a significant question mark over the stability of that relationship.
Black LJ giving the leading judgment
At the outset of the hearing, the Court of Appeal refused permission to the Guardian to adduce further evidence in the form of an updating statement. An appeal is usually confined to the material that was before the trial judge.
Each of these criticisms was rejected by the Court of Appeal. The Recorder had been aware of the criticisms of the mother and had made a number of findings that were adverse to her. He was entitled, however, to reach the decision that he did and he had provided adequate reasons for doing so.
Re X and Y (Children: Disclosure of Judgment to Police)  EWHC 278 (Fam)
This case dealt with the question of whether two earlier judgments in the care proceedings relating to ‘X’ and ‘Y’ should be disclosed to the police. The first judgment , which had been published in a redacted form, followed a fact-finding hearing in which Baker J had found that one of the parents (he could not say which) had caused non-accidental injuries to Y. The second judgment followed the father’s confession that he had caused the injuries. This had not yet been published in any form. Following the second judgment, the mother having been exonerated, the case was resolved by the children returning to the care of their mother.
The police had closed the case when it was unclear which parent had caused the injuries but had sought disclosure of any fresh evidence that arose in respect of this. Following the father’s admission, his lawyers sought an order preventing any party from disclosing any material to the police or the CPS
Baker J refused the application.
He adopted a two-stage approach to the application: first to consider whether the judgments would be disclosed and then, depending on the outcome of that decision, to consider the disclosure of other material.
Baker J had encouraged the parents at the conclusion of the first fact-finding to be more frank about the cause of Y’s injuries. The father confessed two days later. Baker J had not warned the parents of the consequences of s.98 of the Children Act and this absence of a warning was a crucial aspect of the application advanced on behalf of the father. It was argued on behalf of the father that the absence of a warning would infringe his Article 6 right to a fair trial. In the alternative, he argued that by applying the Re EC (Disclosure of Material)  2 FLR 725 criteria, the balance came down in favour of not ordering disclosure, particularly when considering the welfare of the children and the perceived unfairness when no warning had been given. The father’s application was supported by the mother and the guardian but opposed by the local authority who argued that the Re EC should lead the court to order disclosure.
Baker J went on in the judgment to consider in detail the arguments for and against disclosure, applying the ten criteria set out in Re EC. He ultimately concludes:
“the balance in this case clearly falls in favour of disclosure of the judgment to the police and the Crown Prosecution Service, subject to clear directions for the court restricting further disclosure of the judgment or any information contained therein without permission of this court.”
The assaults on Y were serious and there was clear public interest in the sharing of information by different agencies involved in child protection. The welfare of the children would not be affected simply by the disclosure of the judgment, with clear directions that it could not be further disclosed.
Re R (Children: Temporary Leave to Remove from Jurisdiction)  EWHC 643 (Fam)
Application for temporary leave to remove to non-Hague Convention country (India). Application refused. Criticism by the court of the Legal Aid Agency’s refusal to fund a report from an expert on Indian family law in spite of repeated directions that the court considered the report a necessary disbursement on the parties’public funding certificates.
This case concerned four children, aged 7, 6, 4 and 3. Proceedings, which originally concerned the father’s contact with the children, were long running and had required the joinder of the children as parties. The mother sought the court’s permission to take the children on a trip to India. She was of Indian origin and wished to be able to take the children to visit relatives. At an earlier fact-finding hearing, the court had made findings in respect of domestic abuse on the part of the father and paternal family which were “at the lower end of the spectrum”. There was deep distrust between the parties. The father opposed the mother’s application for leave to remove, citing concerns in respect of non-return.
HHJ Bellamy, sitting as a Deputy Judge of the High Court, set out the applicable law relating to applications for temporary leave to remove from the jurisdiction (see full judgment). He also referred specifically to the comments in Re R (a child)  by Patten LJ at paragraph 23 that there was a need in most cases for the effectiveness of any suggested safeguard against non-return to be established by competent and complete expert evidence.
The court had twice made directions for the instruction of experts with the necessary provision that their fees are reasonable disbursements on public funding certificates. However the Legal Aid Agency refused to fund the instruction of an expert report and the court therefore had to consider this case in the absence of any such expert evidence. In applying the appropriate legal principles to this case, the Judge concluded that the balance fell down on the side of refusing permission.
At paras  –  , the court was critical of the Legal Aid Agency (LAA) for refusing to fund an expert assessment on Indian family law. The mother’s application had first been considered by the court on 18th July 2013 when the His Honour Judge Bellamy had permitted her to obtain an expert report and deemed the costs of such report, limited to £2,500, to be a reasonable, proportionate and legitimate expense on her public funding certificate. The mother’s solicitors’ application for prior authority for funding of the expert’s report was refused. In November 2013, Eleanor King J had further directed that the mother and the Guardian (who was by that stage a party) have permission to instruct a named expert. Recitals to her order recorded that the report was “absolutely necessary for the proper determination of the case”, contained detailed reasons as to why the instruction was properly the instruction of the mother and the Guardian (and not the father) and indicated that further delay would prejudice the interests of the children. In spite of this the LAA again refused to grant authority for the instruction of the expert.
His Honour Judge Bellamy described the system for applications for authority to fund experts as wasteful, inefficient and involving an almost impenetrable level of bureaucracy. He considered it “simply unacceptable” that the LAA had “overridden” the case management directions made by the Court (paragraph 96). He directed that his judgment be served on the LAA and that the Chief Executive of the LAA respond in writing within 28 day.
D v K and B  EWHC 700 (Fam)
Judgment in private law children proceedings where the applicant mother, who had alleged rape by the respondent father, is legally aided and the respondent is not.
The case involves private law proceedings concerning a child, B, who is three years old. The court has already determined that a fact finding hearing has to take place. The allegation of rape will be central to the fact finding hearing and so a court conducting that hearing will have to decide whether the alleged rape took place. The Father denies that it did. There are no criminal proceedings in relation to this allegation.
The mother has the benefit of legal aid, the father does not. His application for legal aid has been rejected. The judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. HHJ Wildblood QC sitting as a Deputy Judge of the High Court, invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March, the court was told that the application had been reconsidered and had been rejected again. HHJ Wildblood QC therefore released the judgment for publication under paragraphs 16 and 18 of the Practice Guidance ‘Transparency in the family courts – publication of judgments’, issued on 16th January 2014 by Sir James Munby, President of the Family Division.
HHJ Wildblood QC made the following points; ‘if ever there was exceptional private law litigation then this must be it. I say that for these reasons:
i) The seriousness of the allegations involved.
ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.
iii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.
iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.
v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.
vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.
vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.
viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event. In March this issue was being investigated further.
ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.’
A similar issue arose in H v L & R  EWHC 3099 (Fam) and Wood J said at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”
Re D (A Child)  EWCA Civ 315
Appeal from a decision by Baker J (CW v SG  EWHC 854 (Fam)) within private law Children Act 1989 proceedings to terminate the father’s parental responsibility in respect of his 8 years old child (D) on the application of the mother.
D was born in 2004; the parties never married but the father obtained parental responsibility for him by virtue of being named on D’s birth certificate. In 2009 the father pleaded guilty to sexual offences against the mother’s two daughters (from a previous relationship) and was sentenced to 48 months imprisonment. On his release in June 2011 the mother issued an application under s.4(2A) that the father’s parental responsibility in respect of D be terminated; the father cross-applied for a specific issue order that the mother provide him with annual reports about D’s progress. He did not apply for contact.
Adopting the approach of Singer J in Re P (Terminating Parental Responsibility)  3 FCR 753, Baker J considered whether in the same circumstances as the present case an application by the father for parental responsibility would be granted; applying the criteria set out by Ward LJ in Re S (Parental Responsibility)  2 FLR 648 he found such a supposition to be ‘inconceivable’. Other contributing factors to his decision were, inter alia, the fact that there was no attachment between the father and D, the father’s very late guilty plea to the sexual offences, and the fact that, in the judge’s view, the father would not be able to exercise his parental ‘responsibilities’ in a manner beneficial to D.
The Court of Appeal dismissed the appeal.
Ryder LJ giving the leading judgment
As parental responsibility is a status relating to the welfare of the child, the paramountcy test is overarching; it is the welfare of the child that creates a ‘presumption’ as to the existence or continuance of parental responsibility, not the fact of the father’s parenthood.
The Court noted that the changes to s.4 CA 1989 brought about by s.111 ACA 2002 did not “enlarge, narrow or re-cast the court’s powers or the overarching principle to be applied”. Baker J articulated the correct test under s.1(1), considered the key factual issues, utilised the welfare checklist as an analytical tool and reminded himself that interference with article 8 rights need to be justified: the judge’s conclusion that D’s welfare would be ‘imperiled’ were his father to have any involvement in his life was therefore held to be unassailable.
Having regard to the advantage a trial judge has over the appellate court in assessing the evidence, the Court expressed its hesitation in interfering with that process. On the basis of his findings (including the father’s criminal conviction for serious sexual abuse of a child, his vacillation between acceptance and denial of the charges and his persistent denials as to the validity of his convictions), Baker J was entitled to conclude that the father was unlikely to appreciate the damage caused by his actions or the damage he could cause should he have any further involvement with the family. The Court rejected the argument that the mother had to discharge a ‘burden of proof’ noting that family proceedings are quasi-inquisitorial.
The Court noted that Baker J had considered, and rejected, the mother’s application that a s.91(14) bar be imposed preventing the father from subsequently applying for contact. The Court of Appeal held that the fact Baker J had contemplated his discretion to make such an order (albeit in response to a separate issue) demonstrated that he did have regard as to whether his order was appropriate in that context and the effects of the orders available to the court. Finally the Court firmly rejected the submission that the initial application was being used as weapon by a dissatisfied mother.