August 2014 Case Law Update

PRIVATE LAW

 

J (A Child) [2014] EWCA Civ 875

 

Appeal against findings in private law proceedings. Appeal allowed, findings overturned and no re-trial ordered. Comment provided on approach to vulnerable witnesses and right to fair trial.

 

The court was concerned with private law proceedings in respect of A, now aged 12.  A young woman (X), now aged 21, made allegations from the age of 17 to professionals that A’s father sexually abused her over many years. X did not wish for her identity or allegations to be disclosed, which led to the judgments in Re X [2012] EWCA Civ 1084 and Re A (A Child) 2012 UKSC 60, requiring disclosure of X’s identify (the parents’ niece) and her allegations into the private law proceedings.
An eight-day hearing took place before Pauffley J to assess the truth or otherwise of X’s allegations. The father was a litigant in person however the local authority funded legal representation for part (but not all) of the hearing.  X gave evidence by video-link, with the assistance of an intermediary and other special measures in place. X’s emotional turmoil and distress during evidence was such that Pauffley J described her evidence as “harrowing in the extreme”. In her judgment (Re A [2013] EWHC 2124 (Fam)), Pauffley J concluded that she was in “no doubt as to the outcome” and had “no hesitation in deciding X’s claims against F are fundamentally true”. The father sought to appeal those findings.
The father contended that the judge’s balancing exercise was fatally flawed, in particular because

(a)    an unjustified degree of weight was given to X’s evidence

(b)   there was no process of balancing the factors for or against the making of a finding

(c)    there was no proper analysis of the core allegations.

 

The fairness of the trial process was questioned, as the cross-examination of X was severely curtailed and the father was excluded from the courtroom for a significant part of her evidence but yet had to present his closing submissions as a litigant in person.

McFarlane LJ outlined the factors providing clear support for the finding that the judge made; however, went on to consider the aspects that were more troubling.

 

ABE interview

 

The absence of an ABE interview in the investigation of an allegation of sexual abuse does not rule out consideration of what a complainant has said or now says, as explained in Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006]. However, it must be a matter of note for the judge assessing the material. It was a significant omission from the judgement that there was no mention of the absence of an ABE interview, let alone taking the absence into account in evaluating the evidence. The same principle applies where the complainant is unable to prepare or provide in evidence a narrative account of the alleged abuse.

 

X’s emotional presentation

 

The judge’s observation of the emotional content of X’s presentation was a powerful factor in her evaluation of the truth of the allegations. Whilst this is an essential component of evaluating the evidence, where significant weight is placed on a witness’ presentation there is a pressing need for the judge to step back and conduct a reality check by having regard to both the factual content of the evidence and the other evidence in the case. Otherwise, a strong emotional presentation may have a disproportionately powerful effect on the otherwise dispassionate process.
The CA found that the judge did not sufficiently engage with the lack of any sensory or contextual detail, specifics of timing and location, or detail of the alleged abuse itself. It was not open to the judge to arrive at the firm, psychologically sophisticated reasons for X’s inability to provide such details, in the absence of an expert opinion in support and without analysing how X was able to make the global allegation of abuse but was unable to provide details.

 

Evidence from a vulnerable witness

 

The court referred to the Supreme Court’s judgement in Re A about the ways in which X could give her evidence. There was a scale of options, including no fresh input from the witness, written answers, video-recorded questioning by trained professions, live questioning by video-link, to oral evidence in the normal forensic setting.  McFarlane LJ stated “it must be a given” that the best way to assess reliability, if the witness can tolerate it, is by exposure to the full forensic process where oral evidence is tested through examination and cross-examination. There is a corresponding sliding scale where the degree to which a court may rely on the evidence will increase as the process becomes nearer to the full forensic process. Where special measures are deployed, it is necessary for a judge to assess the degree to which the process may have affected the court’s ability to rely on the witness’ evidence.

 

The CA found that the judgment does not contain any evaluation of the impact of the compromised process on the court’s ability to rely on X’s evidence.  When assessing the reliability of X, it was necessary to acknowledge the difficulties and give them appropriate weight in the overall analysis.

 

The Court of Appeal concluded that the judge’s determination that the father had sexually abused X could not be upheld because:

a)      Whilst the unsupported testimony of a single complainant is capable of establishing proof of what is alleged, there were a number of factors that detracted from the reliance that could be placed on X’s testimony. A finding of fact should only be made after those factors were given express consideration and weight in judicial analysis.

b)     An unjustified and disproportionate degree of weight was given to the emotional presentation of X when she discussed the allegations in the past and over video-link, when there was an absence of the corresponding analysis of detail and a balancing of factors for and against the making of a finding.

c)      It was necessary to conduct a full appraisal of the impact of the highly material change in X’s account of the trigger for the start of the abuse.

d)     The judge’s conclusion for lack of any specific detail in X’s accounts was unsupported by expert evidence and not open to the judge to make.

e)     In the light of the expert medical evidence that X’s physical symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation of fact.

f)       The judicial analysis should have included an assessment of the impact of the lack of any ABE interview and/or a narrative statement.

g)     The judicial analysis should have included assessment of the impact of the limited forensic process around X’s oral evidence.

 

The appeal was allowed and the findings of fact were set aside.

 

McFarlane LJ giving the leading judgment concluded that, even allowing for the fullest justifiable weight to X’s demeanour, a finding against the father was not open to the court to make on the evidence as a whole.  It was highly unlikely that X would be able to engage to a greater extent in the forensic process than she already had and powerful submissions were made that it would be abusive and/or untenable to expect X to take part in a further hearing. No greater clarity would be likely to be obtained by a re-trial. The private law proceedings must now proceed on the basis that there is no finding of fact against the father arising from X’s allegations and any determination as to A’s welfare must proceed on the basis that the father has not engage in any sexually inappropriate behaviour with X.

 

Re D (Child) [2014] EWHC 2376 (Fam)

 

Consideration of general principles applicable to the question of whether there should be safeguarding checks of family members who were not parties to proceedings.

 

The substantive application in this case was the father’s application for a contact order in respect of the two children of the family, A (14) and B (10). The children lived with their mother and neither child had seen the father since 2004.

 

In previous proceedings in 2006 concerning the mother’s application for leave to relocate abroad with the children, the court had conducted a fact-finding hearing in respect of allegations of domestic violence. Bodey J had found that the father had violently assaulted the mother and that she had suffered from PTSD. The mother was permitted to relocate and indirect contact between the children and the father eventually petered out.

 

The mother returned to England a few years later, albeit the father only discovered this in 2011. The father then made a fresh application for a contact order. He was assessed by a psychiatrist as not posing a risk to the children, albeit the mother’s perception was to the contrary and it was recommended that the mother’s then course of cognitive behavioural therapy should run its course before the recommencement of indirect contact. The children were joined as parties to proceedings and represented through a Cafcass Children’s Guardian, Mr Power. He interviewed the children and reported that the children wanted to see their father, and also that they did not like their step-father, whom they described as controlling. The school had reported both boys having difficulties at school, and A had been self-harming.

 
At a hearing in October 2013, it was agreed that indirect contact would commence in February 2014 (when the mother’s course of cognitive behavioural therapy was complete) and the case be re-listed in July 2014. At that hearing Cafcass raised the question of safeguarding checks on the step-father. Bodey J indicated that if the step-father did not agree, a discrete application would have to be made.

 
The step-father declined to be subject to safeguarding checks and Cafcass duly made an application for orders (i) requiring CAFCASS to undertake safeguarding checks regarding the stepfather and (ii) requiring the mother of the children to provide CAFCASS with such information about him as is necessary for those safeguarding checks to be made.

 
Bodey J commented that it was neither easy nor necessary to provide guidance about safeguarding enquiries on non-party family members which would apply to all cases, since the approach would depend on the precise circumstances of the relationships. He suggested that Cafcass should seek co-operation from partners in respect of checks and if this was not offered it should be flagged up to the court prior to the First Hearing Dispute Resolution Appointment” and Cafcass could consider making an application to court (para 24).

 

By way of general guidance, Bodey J offered the following points:

i)        that there is a public interest in the court having information which may be relevant to its determination of a child’s welfare in private law proceedings;

ii)       that any relevant individual who is not a party has a right to respect for his private life, which includes maintaining the privacy of data retained about him by Local Authorities and the Police;

iii)      that the court must therefore balance the individual’s right to privacy against the public interest in the due administration of family justice and the need to safeguard the children who are the subject of the proceedings;

iv)    that, since it is mandatory under the CAP for safeguarding checks to be completed on the parties to the application, departure from that approach for individuals who are part of the same household as the child should logically and generally require some good reason;
v)     that the nature of the application before the court, whilst a relevant consideration, is not determinative since the court’s concern for the welfare of the child is not necessarily limited to making those orders specifically applied for by the parties;
vi)    that the safeguards about the handling, transmission and storage of data provided within the Disclosure Protocol between CAFCASS and ACPO must be applied to any disclosure of information concerning other relevant individuals from the Police and/or from Local Authority records; and
vii)   that the court should generally require undertakings from CAFCASS about (a) the confidentiality of information which it obtains by way of safeguarding checks; (b) its duty to pass to the court only such information as may be relevant to the issues in the case or to the general welfare of the child; and (c) its duty not to disclose any of the information obtained to anyone else without the leave of the court.

 

In this case Bodey J was satisfied on balance that safeguarding checks would be proportionate and that relevant information about the step-father should be known to the Court. His order would record that the court requested the step-father’s co-operation, the court having determined that the concerns of Cafcass were legitimate and that the mother’s fears that they were motivated by the father seeking to intrude into her life were not justified. The matter would be re-visited at the next hearing of the father’s contact application, which was listed in July 2014. LAW

 

 

Re H [2014] EWCA Civ 989

 

Appeal against a specific issue order to permit the mother to travel to Iran with the child.

 

The father sought to appeal the decision to grant a specific issue order permitting the mother to take their 3 year old daughter to Iran temporarily. Both parents had indefinite leave to remain in the UK, with the father having obtained asylum as a political refugee.  In private law proceedings, by agreement, a residence order was made to the mother and the father had unsupervised contact. The father was prohibited from removing the child from the jurisdiction. The mother was permitted to temporarily remove the child from the jurisdiction, except to Iran due to risks to this family arising from travel to Iran. The mother later applied for a specific issue order permitting her to take the child to Iran temporarily.
The father relied on the Foreign and Commonwealth Office (FCO) guidance and his own evidence as to how his relatives and opponents of the regime in Iran had been treated. The father was concerned for the child’s safety due to his previous political activity and that the mother might remain in Iran with the child. The mother relied on her experiences of free travel to and from Iran.

 
The court assessed the risk of the mother remaining in Iran or of the child being subjected to harm as sufficiently low as not to require safeguards. The FCO guidance, which advises against all but essential travel to Iran, was discounted on the basis that the mother would not herself be at risk.
Ryder LJ giving the leading judgement.

Appeal allowed; order set aside and the application remitted to be heard by a High Court judge sitting in the Family Court.

 

The CA concluded that there was a prima facie case that the mother might decide or be persuaded to remain in Iran with the child. Whether such risk is likely is a value judgement based on fact. There was also a prima facie case that the child and/or the mother may be treated by the authorities at least in the manner warned against in the FCO guidance.  Whilst it may be unlikely that the child would come to direct harm, the father would not be able to exercise his parental responsibility should restrictions be placed on the mother and/or the child in Iran.
The CA cited Re K (Removal from Jurisdiction: Practice) [1999] when Thorpe LJ noted it was necessary to assess both the risks and the magnitude of the consequences for the child.  The case of Re R (A Child) [2013] was also cited as follows:

• The overriding consideration in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the order is in the best interests of the child.  Where there is some risk of detriment to a child, the court must be positively satisfied that the advantages to the child of visiting that country outweigh the welfare risks.• The court should routinely investigate what safeguards can be put in place to minimise the risk of retention and to secure the child’s return – the safeguards should have a real and tangible effect in the jurisdiction in which they operate.

  • There is a need in most cases for expert evidence which deals with the effectiveness of any safeguards. If a judge proceeds in the absence of expert evidence, very clear reasons should be provided.

  • If in doubt, the court should err on the side of caution and refuse to make an order.

 

In this case, the court had no evidence of fact or opinion to contradict the FCO guidance, which highlighted real risks associated with travel to Iran.
The facts of this case required rigorous scrutiny of the risks involved, the consequences of the risks becoming a reality and the safeguards available within the foreign jurisdiction.  It raised issues of the effectiveness of diplomatic consular assistance, the relevance of the facts alleged to the risks, including issues of political and religious conflict.  These issues call for the experience of a judge of the High Court and occasionally, expert advice.
In the light of the FCO advice and the lack of any identified safeguards to meet the consequences of the risks, the Circuit Judge was wrong to have granted the specific issue order without further evidence or analysis of the risk, the consequences and the available safeguards.

 

Re B (Child Evidence) [2014] EWCA Civ 1015

 

Appeal from a decision by HHJ Cameron, within a father’s application for contact with his son, that a Family Court Advisor should explore whether another child (the mother’s older child) should give evidence in support of allegations of abuse made by the mother.

 

The father applied for an order for contact with his son, C. In opposing the father’s application the mother made serious allegations against the father and stated that some of them were witnessed by her older daughter, G. A fact-finding hearing was listed and the mother applied to the court for G to give evidence.

On 12 February 2014 HHJ Cameron considered the mother’s application, and concluded that she could not conduct the necessary balancing exercise in determining whether G should give evidence without the assistance of specialist help, having particular regard to Baroness Hale’s observation in Re W [2010] UKSC 12 [at 30] that “… the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that will do to the child.”.

 

The judge gave detailed directions for the Family Court Advisor to, inter alia, provide a s.7 report to assist the court as to whether (and if so how) G should answer questions put in writing and/or to give evidence at the fact finding by another method.

 

It was against this order that the father appealed with the judge’s permission on 17 March 2014. By this time the Cafcass officer had already met with G and prepared a report in which she assessed G’s age and maturity and reported that G had referred to witnessing various incidences of violence. The officer had discussed with G the prospect of giving evidence but had not yet put any questions to her.

 

The father’s grounds of appeal centred on the argument that although the judge had listed the Re W factors she had failed to give them weight and had accordingly arrived at the wrong conclusion (namely that G’s evidence would be required in order for justice to be done).
Black LJ giving the leading judgment; appeal dismissed.

The Court reiterated that the Re W principles are not limited to public law proceedings and apply equally to private law proceedings. The CA found that although in this instance G was not the subject matter of the father’s application (and as such her welfare was not the central consideration) and had not yet provided any evidence, the judge was nonetheless obliged to “weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child” (Re W, para 24).

Counsel for the father had argued that the judge had sufficient evidence on which to conduct the fact finding hearing and had she carried out the balancing exercise correctly she would have concluded that G’s evidence was not required. The Court of Appeal disagreed, noting the judge’s observations that G’s evidence was potentially “very much corroborating and supporting what M says went on” (para 4).

 

The father argued that on the basis children were very rarely called to give evidence in domestic violence cases, the Court should conclude there was little or no evidential value in calling a child. In rejecting this argument, and in recalling Baroness Hale’s view that “[a] wise parent with his child’s interests truly at heart will understand” the harm that calling them to give evidence could do to the child, the Court suggested that in fact if the parent nonetheless chose to call them it would be where they were “persuaded by a very good reason” (para 28).

The father further argued that the judge’s approach was flawed in so far as the Cafcass officer should not have been tasked with considering how G might best give her evidence prior to the court first determining whether she should give evidence. The father argued that G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meantime with M would render her evidence of little value. The Court recognised the logic in this argument but considered that the judge was nonetheless correct in the circumstances, given both the merit in a step-by-step approach and the unpredictability in what G may have said at any point. Furthermore the Court found that the judge had been sufficiently and appropriately aware of the likely limitations on G’s evidence, were it to be heard, and moreover that the judge had not yet made the decision as to whether the evidence should be heard at all, and to this extent they agreed with the mother’s argument that this was a pre-emptive strike by the father.

 

The Court concluded with some consideration as to how the judge might wish to proceed with the matter and the further role of the Family Court Advisor, in particular how the Advisor should if at all obtain and record G’s evidence. The matter was remitted to HHJ Cameron without further delay.

 

Re W (Children) [2014] EWCA Civ 1065

 

Appeal by mother against residence order granted in favour of paternal grandmother. Appeal allowed.

 

The children were living with their paternal grandmother, pursuant to an agreement signed in November 2012 between the LA and the mother. The document stipulated that the mother agreed that the children remain in the care of the paternal grandmother pending assessment.  It was stated on the face of the document that it was not a legal agreement but that it might be used in court as evidence if needed.

 

The envisaged assessment did not take place and the mother issued proceedings for the return of the children. Within those proceedings the local authority filed a s.7 report. The report recommended that the children remain with their parental grandmother as further assessment of the mother’s ability to meet the children’s needs was required. At the conclusion of the hearing an application was made to adjourn final determination of the case pending an assessment of the mother. The application was refused.
The President giving the leading judgment.

 

Appeal allowed; in refusing the application, the Recorder had denied herself vital evidence necessary to fill serious gaps in her knowledge of the mother’s ability to care for the children. This approach went almost as far as reversing the forensic burden.
The Court raised concern regarding the approach of the LA in using the agreement to control the mother and her children without the need to commence care proceedings. The Court expressed sympathy with the complaint that the LA had instigated and resolved what ought to have been public law proceedings sidestepping the need to prove threshold and avoiding the important protection against state interference which Part IV of the Children Act 1989 provides. The LA was not present and the Court gave no concluded view but agreed that it would be a matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

 

PUBLIC LAW

 

London Borough of Bexley v V & Others [2014] EWHC 2187 (Fam)

 

A Local Authority was ordered to pay costs for a hearing to consider re-timetabling following its failure to comply with directions

 

The LA failed to file their final evidence in accordance with the timescale set out in an order, this having already been an extension of time from an earlier direction. The LA did not seek a further extension of time from the court. 8 days after the deadline had been passed, solicitors acting for the other parties notified the court of the LA’s failure.

 

Keehan J’s clerk emailed the LA seeking an explanation. TheLA responded the following day providing various factors by way of explanation and attached a number of care plans for some of the children. The LA was sent a further email asking when it would comply with the order and file its final evidence. The solicitor informed the court that instructions were awaited. No further information was provided to the court. The LA’s final evidence was finally filed and served on a Saturday, 12 days late.

 

The matter was listed for a hearing to address the LA’s failings and to enable the other parties to make submissions as to when they could comply with their obligations to file and serve final evidence. At that hearing the LA argued that no application was made for an extension of time because it was not known when the LA could comply. Keehan J did not accept this as a justifiable reason.

 

Keehan J reminded himself of the President’s observations in Re W (a child) [2013] EWCA 1177 at paragraphs 50 to 54, namely that orders must be complied with to the letter. Where orders cannot be complied with, an application should be made before the time for compliance has expired.

 

Keehan J allowed the other parties extensions of time to file and serve their final evidence, without prejudicing the final hearing date. The LA was ordered to pay the costs of this hearing as it would not have been required if the local authority had complied with the order.

 

Q (Children) [2014] EWCA Civ 918

 

Appeal in care proceedings against findings of fact which, the mother claimed, were made in circumstances where there had been exhibited judicial bias. Appeal allowed.

 

This was an appeal in relation to ongoing care proceedings relating to two children, W (11) and R (21mths). Their mother had significant learning difficulties and an IQ of 61. W also had complex special needs.
Prior to the parents’ separation, there had been a number of concerns about the care that W was receiving and this had led to the parents moving several times between different local authority areas. Following the parents’ separation, the mother had made allegations of domestic violence and rape against the father. However, they subsequently reconciled at which point the LA agreed with the maternal grandmother that the children would reside with her. Care proceedings commenced shortly afterwards.

 

During the course of the proceedings, HHJ Tyzack QC, sitting as a High Court judge, had conducted a fact-finding hearing. He found that the allegations made by the mother previously against the father were unfounded and that she and the maternal grandmother had told ‘wicked lies’ to the court. He had formed a favourable view of the father. He found, however, that the toxic situation in the family meant that the s.31 threshold was crossed.

 

Strikingly, all parties apart from the children’s guardian then appealed against an aspect of the judge’s handling of the fact-finding exercise.  There were no fewer than seven notices of appeal.

 

The mother asserted that the judge had, at an earlier case management hearing, made his views on her credibility known to an extent that he had demonstrated judicial bias. Having heard submissions on this issue, it was common ground between the parties that, if made out, the appeal must be allowed so that the entire proceedings could be re-heard by a different judge. The other matters raised in the different appellants’ notices were therefore not considered in detail.

 

McFarlane LJ, giving the leading judgment

Appeal was allowed and the matter remitted to be reheard in its entirety by a different tribunal.

 

The legal test for judicial bias found in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The purpose of a case management hearing, namely being for the judge to focus on the real issues in the case and the role of the overriding objective in family proceedings. However, in this case, the judge had gone beyond the permitted practice of inviting a party at a preliminary hearing to consider their position on a particular point and had behaved in a manner that would suggest to an impartial observer that he had formed a concluded view in relation to the mother’s credibility. Whilst there was no criticism in the decision to require the police officer to come to court when it emerged that the mother had made fresh allegations that were unknown to the father and some other parties prior to that hearing, as this had led to prompt disclosure of the police material to the parties and the court, the judge erred in then embarking on an analysis of that new evidence at that hearing. The appropriate course of action would have been to allow the parties to take the disclosed material, give instructions on it and file further evidence if necessary. The flaws in this approach were made worse in this case by the lack of consideration given to the mother’s vulnerability and the fact that she was, at the time, represented by the Official Solicitor and then:

 

“The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process” (para 57).

 

KS v Neath Port Talbot Borough Council [2014] EWCA 941

 

Grandmother appealed case management decision to refuse her party status. Appeal allowed, care and placement orders set aside, case remitted for re-hearing.

 

The paternal grandmother was assessed as a potential carer for the child (aged 2½) before proceedings began – the assessment was negative but significant positives were noted. The grandmother did not challenge the assessment initially because the LA were seriously considering placement with the mother under a supervision order. The care plan later changed to adoption.

 

A week prior to the final hearing, the grandmother made an application to be made a party and for an expert assessment. On the first day of the final hearing, the judge adjourned the grandmother’s application and he refused it on the last day. She did not have party status throughout the hearing, though she was permitted to remain in court and she gave oral evidence. At the conclusion of the hearing, the court made care and placement orders.
The paternal grandmother applied for permission to appeal – her application was supported by the mother and opposed by the local authority and the children’s guardian.

 

Ryder J giving the leading judgment
Appeal was allowed; care and placement orders were set aside and case management orders were made for further assessment and analysis and a re-hearing.
The CA held that the case management decision was plainly wrong because it was procedurally unfair. Case management decisions that have the character of deciding a substantive issue must be treated with particular care – the judge did not have regard to the evidence relating to the factors at s10(9) of the Children Act 1989 or to the potential merits of the grandmother’s case and his reasons lacked sufficient analysis.

 

The purpose of s10(9) and the associated case law is defeated if there is no analysis of the benefits and detriments inherent in the application and whether the case is arguable – there should be a balance between the case management principles and the substantive issues in the proceedings. The negatives in respect of a placement with the grandmother did not exclude this as a realistic option – this went to the critical proportionality evaluation of whether “nothing else would do” than adoption. The grandmother’s application for party status required rigorous scrutiny of the s10(9) factors in the context of the reasons for the late application.

 

If the judge’s intention was to consider the grandmother’s case at the end of the evidence in a holistic overview of the options, he failed to put in place procedural protections for an individual whose case was distinct from the other parties – adjourning her application for party status until the end of the hearing had the effect of refusing her application, as she was denied access to documents to be able to challenge matters relating to her own case and required her to give evidence without knowledge of the relevant evidence. By virtue of the way in which the case management decision was made, the evidence relating to whether the grandmother was a realistic option was not identified or tested.

 

The judgment further lacked a comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation was missing from the judgment. There was no overt analysis of the child’s welfare throughout her life nor the effect on her of ceasing to be a member of her original family. The essence of recent case law and the statutory tests was not sufficiently demonstrated. Consideration of whether the grandmother could be excluded required an analysis of the timetable for the child, the timetable for the proceedings in the light of the overriding objective, the s10(9) factors, and the arguability of the grandmother’s case – that analysis was missing.

J-A (Children) [2014] EWCA Civ 936

 

Appeal by the mother against care orders with care plans for placement with the father.

 

The case concerned two children placed with their father under care orders following proceedings in which it had been found that their younger maternal half sibling (I) had suffered non-accidental injuries caused by his father. The court found that the mother had failed to protect the child. The relationship between the mother and I’s father had been characterised by domestic violence. The father of the two children had also (during the course of their relationship when much younger) been violent to the mother.

 

Having made findings in May 2013 and ruled the mother out, in October, the judge then made final orders.

The mother, acting in person, sought leave to appeal on a wide ranging basis including challenging the findings made.

 

Patten LJ gave permission focused on (but not limited to) the “paradox” of the children being entrusted to the perpetrator of violence, whilst the erstwhile victim (the mother) was granted only limited contact.

The mother, who was represented on appeal, advanced three grounds:

i)        the judge had been wrong to refuse the adjournment/assessment in the light of improvements she had made.

ii)       the judge had been wrong to approve a placement with father that was against the children’s best interests.

iii)      the judge had prematurely handed over responsibility to the local authority.

 

Black LJ giving the leading judgment; appeal dismissed.

 

The May judgment

 

The mother’s “high” level of culpability and her dishonesty and opined that it was “no surprise” that the judge had concluded that the mother must be ruled out as a carer for any of the three children.
She noted his “cautious” approach to the father (in respect of whom he had made serious findings derived from his violent behaviour in 2005/6 and about whom there were concerns as to his “insensitivity” and possible conflict with the maternal family). The judge had noted his positive rapport with his children and concluded that the adverse findings should not preclude further consideration of him as a potential carer.

 

The October judgment

 

Black LJ noted that, by then, the father and his parents had been favourably assessed and that both the LA and guardian supported placement with him. The trial judge had considered both the father’s abilities and his anxieties about the domestic violence (in respect of which the father had made only limited acknowledgement). The mother had given evidence that was equally, if not more, unsatisfactory than that in May. Truthfulness about the injuries to I was a “crucial issue” and she had shown no indication she would be frank or cooperative. Accordingly, it was not right to delay matters for an assessment of her when the children could be placed with the paternal family. This was especially so as the children were beginning to be adversely affected by the continuing uncertainty.
The first ground of appeal was not made out. The judge had not been wrong to rule the mother out. He had the advantage of judicial continuity and was well placed to evaluate if change had occurred. When, in October he looked for evidence of change in respect of this “crucial issue”, he had found none. The argument that the mother had undertaken work to address her vulnerability to forming future relationships with men who would be violent to her (and thereby avoiding any risk to a child in her care) failed. In the absence of knowing what had happened to I, the nature of the future risk remained unknown. As any placement with the mother would be under a care order, honesty with such professionals would be vital. Whilst he had given weight to the positive elements of the mother’s case, he was entitled to give “considerable” weight to the crucial issue and to conclude that, in such circumstances, an assessment was not necessary to resolve the proceedings.
In respect of the issue of placement with the father, the paradox of placement with a former perpetrator did require some consideration. The differential treatment of the parents was justified on the basis of the difference in circumstances. Whereas the mother’s failures were in respect of recent events in which the court remained in “the dark”, those of the father were in relation to “known events” of some years past.
The judge had acknowledged and taken the “paradox” into account. He had recognised the “shortcomings” of the father and that the options open to him, if he was to avoid adoption, were both flawed, but, whereas there could be no immediate placement with the mother, the flaws in a placement with the father (with whom the local authority would continue to share parental responsibility) were manageable and allowed the children to progress immediately. Albeit that the judgment did not deal expressly with some of the possible difficulties; articulation of every last thing would render extempore judgments impossible and cause delay. The judge’s thinking was clear and the Court of Appeal would not interfere with his decision.
It was not premature to make final orders. The moment to hand over to the local authority required (in this case) a “judicious mix of analysis and intuition”. Although there remained work to be done, there had been a detailed care plan with which the judge, having considered the potential problems and the impact of delay on the children, had been satisfied. Again, the appellate court would not interfere with a decision made by a judge who had had the opportunity to evaluate the parties and the evidence over many months.

 

X County Council v M and Others [2014] EWHC 2262 (Fam)

 

Applications by the local authority (i) under the inherent jurisdiction for permission not to disclose to the mother the care plan for her unborn child, namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. Applications granted.

 

Proceedings began before the birth of the child when the LA sought and obtained an order under the inherent jurisdiction permitting it not to disclose to the mother its care plan in respect of the unborn child, which was removal at birth. The LA also sought and obtained a time-limited reporting restriction order.
The background to the case was that the mother had a diagnosis of a schizo-affective disorder and was, prior to and subsequent to the birth of the child, particularly unwell. At the time the LA made its application under the inherent jurisdiction she was in hospital under s.3 of the Mental Health Act. She was assessed as lacking the capacity to litigate.

 

Following the child’s birth, the LA obtained an emergency protection order and the child was placed in foster care. The LA’s application for an interim care order was then listed before Keehan J.
Keehan J levels various criticisms at the LA regarding its preparation for the two hearings which then took place on 3rd and 6th June. These included a failure to notify properly the parents of the hearings and an allegation by the mother’s treating psychiatrist that his views had been misrepresented in the LA’s evidence.
Keehan J considers the law as it applies to applications under the inherent jurisdiction not to disclose a care plan to a parent, for reporting restriction orders, and in relation to interim care orders. He then considers the evidence in the case, and particularly the evidence relating to the mother’s mental health.
The factors that he regarded as relevant to the decision to grant the order under the inherent jurisdiction included the mother’s mental health diagnosis and her recent deterioration, her history of being abusive and threatening and her inability to cooperate with mental health professionals and her belief that all the professionals in the case were involved in a conspiracy to harm her and/or her child. In reaching his decision, he concluded that there would have been a “very real risk” of physical harm to the mother and/or the unborn child had he not made the order sought.
Dealing next with the reasons for the reporting restriction order, having paid close attention to Articles 8 and 10 of the European Convention and the ‘exceptional’ facts of this case, he concluded that a time-limited order (until after the child’s birth) was necessary in order to ensure that the local authority’s intentions did not become known to the mother.
Finally, in relation to the interim care order, the concerns about the mother’s mental health remained and the evidence of her treating psychiatrist provided grounds for the court to be satisfied that the interim threshold criteria were satisfied. Neither of the parents opposed the making of the order and the judge was satisfied that the child’s welfare required that she remain in foster care as the proceedings continued.

 

M-F (Children) [2014] EWCA Civ 991

 

Local authority’s application for permission to appeal against decision to adjourn final hearing for ten weeks to obtain an additional report on the mother’s progress in a course of work advised by the consultant clinical psychologist.

 

In March 2013, the LA issued care proceedings in relation to V (15) and her brother, M (9). The matter came before the Court of Appeal 67 weeks later when the LA challenged the order, of April 2014, to adjourn the fourth final hearing.  The mother and the guardian opposed the application. In his leading judgment the President noted that the proceedings had begun before the implementation of the pilot revised PLO.

 

HHJ Probyn heard the fact finding hearing in September 2013 and determined the mother had caused significant physical harm to V and significant emotional harm to both children. She directed a consultant clinical psychologist to report on the potential impact of the local authority’s care plans on the children and on the risks posed to the children by a return home to the mother. After this, the case took various unforeseen turns: V absconded and her care plan was changed; the guardian was unable to support M’s care plan; M then absconded; the guardian recommended a further adjournment; and the judge noted that M felt it unfair that V should return to her mother’s care under a supervision order, having been subjected to physical harm by her mother, when M could not do so.

 

In its application the LA relied upon the President’s judgment in Re B-Sdetailing the effect of the statutory reforms under the Children and Families Act 2014 and, in particular, the amendments to s.32 of the Children Act 1989 including the requirement that care cases be determined within 26 weeks and the limited conditions, explained in sections 32(5)-(7), in which that period can be lengthened.
The President giving the leading judgment; permission granted but appeal dismissed.
The President noted at [26]:

“that the 26 weeks rule ‘is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy’, and my endorsement (para 29) of Pauffley J’s warning in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, that ‘Justice must never be sacrificed upon the altar of speed.’”

 

The President found that HHJ Probyn had given the difficult case great care and had reasoned without any error of law or approach, having considered all the relevant factors.

 

The LA submitted that HHJ Probyn had been wrong to consider the application without hearing oral evidence. The President warned against applications for adjournments turning into mini trials. As the judge was familiar with all the intricacies of the case and had heard evidence from the social worker, the guardian and the mother previously, she was well-equipped to assess the application on the papers.

 

The President also dismissed the LA’s submissions based upon M’s need for finality. He noted that the care plan provided only legal finality, and that it left M’s position uncertain.

 

The LA’s final submission was that as their care plan was for ongoing consideration of M’s rehabilitation to his mother, the court was wrong to adjourn the proceedings. They relied upon the principles stated by Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan), In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 2 AC 291. The President rejected this contention since it pre-supposed the court had accepted the local authority’s care plan. Here, the court had not determined whether a care order or a supervision order should be made and the unresolved issue was a matter within the court’s exclusive competence.

 

Finally, the President referred to the use of the phrase ‘purposeful’ when describing delay. He stated the phrase should no longer be used as it can be misleading, and the relevant test is described at section 32(5) Children Act 1989.

 

RE W (Children) [2014] EWFC 22

 

Sir James Munby the President of the Family Division affirms that the court expects and will now demand strict compliance with court orders.

 

Following a failure by Bristol City Council to file and serve its final evidence and care plan in accordance with the court’s order, the President established the essential importance of court orders being adhered to on time and in accordance with the relevant practice directions.

 

This includes, for example, the filing of position statements which are to be lodged with the court no later than 11am on the day before the hearing pursuant to paragraph 6.4 of PD27 A. The President sought to highlight the meaning of PD 27 A in that where the hearing is before a judge of the High Court and the name of the judge is known, with the exception of the authorities, (which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk. The judge commented that there was a failure by the advocates in this case to send their documents to both the court and to his clerk and that this will not be tolerated.
The President further established the absolute requirement to comply with paragraph 7.4 of PD 27A and the filing of bundles as Bristol City Council had also failed to adhere to this practice direction.

 

The President, with reference to FPR 4.5(3), emphatically stressed that the assumption that the parties can, without reference to the court, agree an alteration in timetable set by the Family Court is wrong and commented that they cannot and they must not. He made further reference to the court’s powers under FPR 12.24 and that the standard case management order spells out that every party is under an obligation to immediately inform the court if any party or person fails to comply with any part of a court order.

 

CLAIRE HOWELL

Barrister

No5 Chambers