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Children: Public Law Update (September 2007)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest public law cases and their impact on assessments, timetabling and split hearings

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Alex Verdan QC, 4 Paper Buildings

Introduction
In this Review I will focus on cases covering the following topics:

Residential Assessments
In Re K (Care Order) [2007] EWCA Civ 697, the child was removed from the mother shortly after birth because of concerns about the mother's mental health, both parents' misuse of alcohol and drugs, and the parents' volatile relationship. The mother applied for a residential assessment by the local family resource under Children Act 1989, s 38(6). One of the medical assessments before the court suggested that a residential assessment would be very helpful, given the mother's encouraging progress during contact sessions. The judge at first instance dismissed the mother's application on the basis that the assessment sought would not address the real issue, which was not the mother's parenting abilities, but her ability to address her drug and alcohol problems. The Court of Appeal allowed the appeal, noting that the relevance of the assessment sought had been underlined by one of the experts, fortifying the mother's submissions that the assessment would be helpful to the court. It held that without the assessment the essential requirement of fairness would be jeopardised.

Comment: Interestingly, this case focuses on the need for there to be a fair trial or at least the perception of a fair trial; given that one of the experts considered such a residential assessment would be very helpful; despite the fact that the trial judge's view - that this assessment would not deal with the real or main issue of the mother's drug and alcohol problem – was not, as far as I am aware, criticized by the Court of Appeal. It is not clear whether this decision marks any shift in thinking as to the criteria for making s38(6) orders, as opposed to a decision based on individual facts of the case, but may well be helpful for those arguing for such assessments in cases where one expert or professional witness supports such course but others do not.

Timetabling
In Re K (Order: Delay) (Family Division; Baron J; 7 June 2007) the local authority believed that the child's death was the result of the mother having shaken the child. In the course of care proceedings the court made an order (i) setting the dates for a two-day fact-finding hearing and (ii) requiring the police to disclose all information arising from their investigations by a specific date over 10 weeks before the hearing. The order was made in good time but was not issued until over one month after the deadline for disclosure. In the meantime, the police had been informed of the contents of the order, but had not complied with it. The mother did not receive the relevant information until the morning on which the fact-finding hearing was due to begin, and the court date had to be vacated.

The Judge held that administrative authorities in court should ensure that court orders were issued in good time. In response to the failure to issue or comply with orders, local authorities ought to seek clear directions from the court at an early stage.

Comment: This case repeats the obligation on the local authority to ensure compliance with court directions and to bring the matter back to the court if there has been failure. Of course this obligation, in practice too often ignored in my experience, is one on all the parties, in particular the Guardian and one which, in my view, should be exercised far more willingly and promptly.

In Somerset County Council V SD & 10 Ors [2007] EWCA Civ 722; CA (Civ Div) (Sir Mark Potter (President Fam), Sedley LJ, Wilson LJ); applications made by a local authority for care orders in relation to six children were transferred to the High Court for reconsideration in circumstances where an interim order had failed to lay down the focused directions necessary for a timely and final disposal of those applications. The appellant local authority appealed against the interim disposal of care proceedings in relation to a family of six children. At the first substantive hearing the judge refused to endorse the local authority's care plans and directed that the applications be restored to him a month later for further directions so that he could discern the amount of progress made by the parents in addressing their alcohol related problems in that intervening month. At the second hearing the judge made an interim care order as opposed to full care orders and directed the parents to file further statements after another month, and stated that he considered there should be a succession of further interim care orders. The Court of Appeal allowed the local authority's appeal on the basis that the interim order failed to lay down the focused directions necessary for a timely and final disposal. In the circumstances it was plainly incumbent on the trial judge to provide a more focused and specific framework for the future conduct of the applications. It was essential in the interests of the children that the judge should have required a specific raft of proposals to be laid before the court, analysed in detail on both sides, and, to the extent that they were approved, made the subject of directions. In particular, he should have laid down a specified timeframe providing for the judge's further substantial review not at a series of short directions hearings, but at a hearing at which there would be a proper opportunity for consideration whether, in the light of the sincere but by no means confidence building efforts of the parents, investment of yet further time was justified by reference to the best interests of the children. It was necessary for there to be a more professional and measured appraisal of whether there was sufficient prospect, within an acceptable time frame, of reunification of the children with the parents so as to permit further investment of the children's time in exploration of it. The appeal was therefore allowed but instead of making the full care orders requested the application for such orders was transferred to the High Court.

Comment: The guidance given in this case is applicable to many cases which are adjourned for the purposes of assessing further the prospects of rehabilitation. It makes clear the obligation not only on the court but also on all parties to ensure that the purpose of the adjournment, together with all the specific proposals, are made very clear on the face of the order. This, of course, can be done either by specific orders themselves, or by detailed recitals or by attached Schedules. All those involved in the case should ask themselves what would a newcomer to the case, not knowing the history and not knowing what was discussed at the court hearing, make of the court order when reading it? An order, e.g. adjourning a final hearing should make complete sense explaining the purpose, the plan, the timescale and the criteria for assessment.

Section 47(7) of the Adoption and Children Act 2002
The high number of appeals involving placement orders continues. In P (A Child) [2007] EWCA Civ 616, the child was removed from the care of the father and the mother by means of an emergency protection order. The care plan was for the child to be adopted by strangers and a placement order was made under s 21 Children Act 2002. The judge dispensed with the parents' consent to the placement. The new family issued adoption proceedings in respect of the child. The parents requested leave to defend the adoption proceedings, arguing that there had been a change in their circumstances which passed the threshold under s 47(7) of the 2002 Act, allowing the judge to grant leave to defend. The judge was not satisfied that there had been a change in circumstances under s 47(7). Further, s 1 of the 2002 Act applied to the proceedings: the child's welfare was the court's paramount consideration and required her to be adopted. The parents appealed, arguing that the judge was wrong to hold there had been an insufficient change in circumstances so as to pass the threshold and, further, that the judge had been wrong to hold that the child's welfare was the court's paramount consideration on an application for leave to defend adoption proceedings. The appeal was dismissed. The judicial decision whether or not to give leave to a parent to defend adoption proceedings under s 47(5) is a decision related to the adoption of a child and as such was governed by s 1 of the 2002 Act and the child's welfare was the paramount consideration. The change in circumstances had to be relevant or material to the question of whether or not leave should be granted. The statute did not demand that the change should be significant. The judge had properly exercised his discretion in accordance both with the 'welfare check list' in s 1(3) and s 1(4) of the 2002 Act and with the principle that children have a right to be brought up by their natural parents with their full siblings unless their welfare positively demands the displacement of that right. The fact that a judge is taking the welfare of the child as his paramount consideration does not mean that he must conduct a full welfare hearing with oral evidence and cross examination in order to reach a conclusion.

Judges hearing applications by parents for leave to defend adoption proceedings after a placement order has been made should follow a two stage process: (1) they must find that there has been a change in circumstances since the order was made which is material, and of a nature and degree which is sufficient to open the door to a consideration by the court of the exercise of its discretion to give the parents leave to defend; (2) if such a change in circumstances is found, the second stage is reached and the question of leave falls to be decided by the application of s 1 of the 2002 Act to the facts of the case. The paramount consideration must be the child's welfare throughout his or her life.

Comment: what this case does not tell us is what change in circumstances the Court would consider to be material and of a nature and degree sufficient to lead to reconsideration. Given that the child will have been placed with prospective adopters, it is difficult to imagine when the circumstances relating to the birth family would ever be sufficiently material on their own to justify a change in placement, particularly with very young children who do not have a meaningful relationship with their birth parents. On the other hand, it is easier to imagine that a change in circumstances in the prospective adopters' home would be seen as sufficiently material where, at the same time, the birth parents situation has improved.

In J (A Child) [2007] EWCA Civ 906, the Court of Appeal held that in the circumstances a judge had been right to make an order under the Children Act 1989 s.91(14) preventing a mother from making any further applications to the court in relation to her son until he was 18 years' old, a period of 5½ years. Following the parents' separation a course of litigation had begun with over ten hearings in relation to contact, residence, prohibited steps orders and alleged breaches of those orders. Eventually the child was taken into care and a care order made on the application of the local authority. The child was subsequently placed with the father under the care order. The mother applied for specific contact under s.34 (3) of the Act, which was refused. M applied out of time for permission to appeal against the care order, for a discharge of the care order and for an increase in contact. The applications were refused and, on the application of the local authority, an order made under s.91 (14) of the Act to last for five-and-a-half years until the child was 18.

The Court of Appeal held that an order under s.91 (14) without limit in time ceased to have effect when a child reached 18 years' old under s.91 (13) and was appropriate only in the most exceptional circumstances. The judge recognised that ordering prohibition until J was 18 was an extremely unusual order. However, there was justification in the judge's view that it was in J's interests that a moratorium on all applications should be imposed. There was no question that any order of the court permanently shut the court door in the litigant's face. The court was ready, and obliged, to open the door to any application that had prima facie merit.

Comment: This is an interesting case because s91(14) orders are rarely used in respect of children in care and because of the length of the s91(14) order, namely 5½ years which though recognized as extremely unusual was justified in the circumstances and taking into account that the mother was entitled to apply to discharge the order.

Split Hearings
In North Yorkshire County Council v B (Family Division; Black J; 18 April 2007) the local authority sought determination as to whether it was in the child's best interests to be placed with her mother now or in the foreseeable future. The mother argued that the judge should go no further than determining the facts necessary for establishing the threshold criteria and the facts necessary for the decision as to the placement of the child. Assessments of the paternal family were not yet complete and the local authority had not yet therefore prepared its care plan. The mother argued that it would be unusual to determine her situation before the local authority was in a position to put forward a final care plan, and also that it would be unfair to her in view of the fact that she was making progress in her personal life and might be in a position to care for her daughter by the time the paternal family assessments were complete.

The court held that it could not be argued that decisions in care proceedings only crystallise when the court is about to make a final order. The process of determination in a split case such as this was spread out over months but was still a single process. Split hearings were a well established example of decisions being taken at an early stage in care proceedings that enabled assessments and decisions to be taken later on. It was possible to have a threshold hearing as the first part, and where the threshold involved reliance on the likely to suffer harm limb of s 31 Children Act 1989, value judgments built on facts were bound to feature in the first part of the hearing as well as in the second. If the evidence was available there was nothing wrong with the court determining in advance of the local authority presenting its final care plan and the court considering 'disposal' that a particular individual was not going to be in a position to care for a child safely in the sort of timescale that the child needed. The question was therefore not whether it was a lawful or permissible exercise of discretion to deal with matters in the proposed manner, but whether evidence was available to take the decision at this stage. All the evidence had been collected on the future prospects with regard to the mother: it was not going to be rendered uncertain by continuing assessments of the paternal family. Evidence as to the mother's long term situation would therefore be heard in this first hearing.

Comment: This case confirms that it is wholly appropriate for the court in family proceedings to case manage in such a way, when appropriate and where the evidence is available, so as to isolate and decide on discrete issues before moving on the decide the rest of the case. In practice it is common e.g. for local authorities to ask the court to decide first whether or not a child can be rehabilitated to a parent before adjourning off the decision of e.g. placement with extended family, in particular, where the former issue is straightforward and the latter more complex.

In Re F (A Child) [2007] EWCA Civ 810; the appellant local authority appealed against a decision of a judge dismissing care proceedings brought by it against the respondent parents (F and M) in respect of the daughter (J). The case demonstrated the need, when a split hearing was ordered in care proceedings, for both the court and the parties to be absolutely clear about the purpose of the hearing, the issues to be decided and the relief to be sought. In the instant case there had been a worrying gulf between what the local authority was seeking to achieve and what the court had been invited to hear. If what the local authority was seeking was an interim care order with a view to further assessments of the parents, that did not emerge from the documents that it had filed and it should never have submitted to the directions made by the district judge. It was unfortunate that the judge had introduced the concept of "no case to answer", which had little or no place in care proceedings. The judge's order was set aside and the proceedings were restored.

Comment: When a split hearing was ordered in care proceedings under the Children Act 1989, there was a need for both the court and the parties to be absolutely clear about the purpose of the hearing, the issues to be decided and the relief to be sought.

Expert Evidence
In Re J and O (Family Division; Her Honour Judge Cahill QC sitting as a deputy judge of the High Court; 20 July 2007) a consultant forensic psychologist referred throughout her report to abuse the mother had suffered at the hands of the father, to the father raping the mother, and that one of the children had been conceived as a result of the rape. These were allegations that the mother had made against the father which at an earlier fact-finding hearing the court had found to be untrue. The psychologist appeared to ignore both the fact-finding judgment and the children's guardian's report, which had been sent to her. All her views appeared to be led by her belief that the mother's problems stemmed from abusive treatment by the father, and the mother's own assertions that she had successfully completed treatment in the form of medication and counselling. She had accepted the mother's refusal to disclose her GP records as reasonable. In cross examination she failed to accept that the whole historical evidence upon which she relied had been rejected at a hearing where both the mother and father had given evidence. The Court held when an expert fails to mention and accept a series of findings made at a court hearing it not only makes her evidence unreliable but also raises the question of her status as an expert witness. Findings of fact made by a High Court judge after a full hearing are facts upon which an expert can rely completely. It is not within the role of an expert to decide whether the findings of a judge or the assertions of a parent are to be preferred.

Comment: in situations where experts are instructed after a fact finding case it is very important that the experts are told of the significance of the findings and told how they must treat them.

Alex Verdan QC
4 Paper Buildings