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Children: Public Law Update (April 2008)

Alex Verdan QC, of 4 Paper Buildings, reviews the key public law children cases from the last three months

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Alex Verdan QC, 4 Paper Buildings

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

Supervision Orders
In T v Wakefield Metropolitan District Council [2008] EWCA Civ 199; the Court of Appeal held that on its proper construction, the Children Act 1989 Sch.3 para.6 did not permit the making of a supervision order of three years' duration from the outset. Three years' protection could only be provided by the making of at least two orders; the first a supervision order of 12 months' duration and the second an order extending the first for a further two years. The court gave guidance concerning the practice to be followed in extending supervision orders. Before any extension was sought, the need for and the acceptance of extension should be canvassed in correspondence. That exploration would reveal whether the extension was consensual and, if not, the extent of the dispute. The issue of any necessary application should not be delayed so as to imperil a local authority's imperative need for a determination before the expiration of the current order: once the order had expired the applicant would be compelled to prove and the court to determine the s.31 threshold since the application would no longer be an application for extension but an application for a new order. It was to be doubted whether there would be a need for an application to extend a supervision order of 12 months' duration before the last quarter of its life, but how well within that quarter the application should sensibly be issued depended on the facts of each case.

Standard of Proof
The standard of proof required in public law cases has always caused practitioners some anxiety and continues to. On 29.01.08 the Court of Appeal considered the father's appeal in the case of Re B, (the decision of Charles J referred to in my December update). The Court of Appeal started that it was for the House of Lords and not the Court of Appeal to consider whether the legal position had been correctly stated in Re H (1996) AC 563, Re O and N (2004) 1 AC 523 and Lancashire CC v B (2000) 2 AC 147 in relation to care proceedings where future risk to a child was neither probable or improbable. The appeal was dismissed. The decision of the House of Lords, presumably some time later this year, is keenly awaited.

Fact finding and split hearings
In AP v Vale of Glamorgan Council & Ors [2007] EWCA Civ 1265, the Court of Appeal gave the following guidance when dealing with so called 'split hearings' and highlighted the following points of practice:

(a) When a split hearing is ordered, express consideration should be given by all parties and the court to whether satisfaction of the "threshold criteria" will be considered and determined as part of the first, the final or an intermediate hearing. Orders for directions should identify and describe with clarity what is to be the subject of evidence, argument and decision at each future hearing.

(b) Labels such as "threshold hearing" and "threshold document" must be used with great care and in particular must not be confused with "fact-finding hearing" and "schedule of proposed findings of fact".

(c) In any case in which the threshold criteria are alleged to be satisfied on the basis of future risk rather than of past harm to a child, there must be a clear written analysis and description by the local authority of the facts alleged to give rise to that future risk in relation to each child, to which all other parties have the opportunity to make written response.

(d) Where there is a split hearing, express consideration should be given to whether the documents referred to at (c) above should be prepared before, or only after and in the light of, the determination of the fact-finding hearing and, if appropriate, further assessments.

(e) Where, as in this case, proceedings are consolidated or other children are added as subjects of existing proceedings, great care should be taken to scrutinise earlier orders for their suitability to the consolidated or enlarged proceedings.

This case is another example of the Court of Appeal stressing how important it is for all involved to give a great deal of care and consideration to case management.

An unusual and creative example of the use to which fact finding can be put is to be found in the recent case of Lambeth v TK [2008] EWCA Civ 103. Here, the Court of Appeal held that the Court was entitled to hold a fact-finding hearing to determine a young person's age where it had made a direction to the local authority under the Children Act 1989 s.37. The local authority was not able to discharge its duties under the direction by simply concluding that the young person ('T') was not a child. The appellant local authority appealed against a decision of the High Court that a fact-finding hearing should take place to determine the age of T. During family proceedings the High Court had ordered the local authority to file a report under the Children Act 1989 s.37 as to T's current and future circumstances. The local authority filed a report which concluded that T was not a child and it was not obliged to provide accommodation for her. The local authority argued that it had complied with the direction under s.37 and since T was not a child, the local authority's obligations under s.37 were at an end. The local authority submitted that the only proper forum for T to challenge its decision as to her age was by way of judicial review.

The Court of Appeal held that it was for the court which made the direction to determine whether T was a child and whether the direction made by the court should be discharged or maintained in order to extract from the local authority a report both upon the past, present and optimum future circumstances of T. Local authorities could not be the arbiters of whether courts had jurisdiction to make directions to them. The court was entitled to direct that a fact-finding hearing take place to determine T's identity and whether she was a child.

In Re A (A Minor) [2007] EWCA Civ 1383, an appeal by a foster mother, against a refusal to allow her leave to apply to adopt a child currently in her care, was allowed by the Court of Appeal.

The foster mother had care of the child, A, from when A was only 6 days old. At the time of the appeal A was 9 months old. The natural mother, who was party to the proceedings, supported the foster carer's application, as did the guardian. The local authority had opposed the application as they had concerns, among other things, that the foster mother already had a 'busy household', 'was a smoker' and as being a fosterer she did not have the same motivation to care for a child as an adopter. They therefore pressed ahead with plans to place A for adoption, despite a written intention from the foster mother which they assured her would be considered.

In his judgment Wilson LJ reviewed the history of the proceedings and concluded that the guardian's support of the foster mother's application required the judge to consider that position more carefully than he had done. He rejected counsel for the local authority's submission that the application was late. Crucially, Wilson LJ also found that the trial judge had been considering whether the local authority would support the foster carer's application when he should have considered whether there was a real prospect that the court would support the adoption of A by the foster mother. Accordingly the Court of Appeal exercised their discretion afresh and granted leave to make the application.

Sexual abuse
In Re JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3, the Court of Appeal held that a judge in care proceedings had been entitled on the evidence to make findings of sexual abuse and hold that the threshold criteria under the Children Act 1989 s.31 had been satisfied in relation to three children. The appellant's main submissions were that the judge had (1) adopted a flawed approach in relation to the allegations of sexual abuse, failed to give herself any warning of the necessity to act with caution in dealing with hearsay evidence, failed clearly to analyse the various allegations and failed to take properly into account the discrepancies in the child J's evidence; (2) failed to properly assess his and other family members' credibility on the sexual abuse issue; and (3) had failed to take into account the possibility that J's evidence had been contaminated by discussion with her brother, C.

The Court of Appeal held:
(1) In a sexual abuse context, when reviewing findings of fact made by a trial judge, the appeal court had to give great weight to those aspects of the case that were exclusively within the domain of the trial judge. The trial judge had been fully aware of the fact that she was dealing with hearsay evidence and the dangers of doing so, and had directed herself correctly as to the law she had to apply. There was no one correct way to approach allegations of sexual abuse as every case was different. In undertaking the fundamental exercises identified in Re H [1996] AC 563 and Re B [2006] EWCA Civ 773, the judge had been properly entitled to make the findings of fact that she had made in relation to the allegations of sexual abuse made by J. The judge had been entitled to say that, given J's age and background, J's inability to give a full narrative description of the events did not, of itself, make her account unreliable. The assessment of J's credibility was for the judge and for the judge alone. The judge had made sufficient analysis of J's credibility and did not need expert evidence to assist her: Re N (A Minor) (Child Abuse: Video Evidence), Re (1997) 1 WLR 153 applied. The judge had been fully aware of the inconsistencies in J's account but had been entitled to select aspects of J's account that met the Re H standard of proof and to reject those that did not.

(2) It would have been wise for the judge to have dealt in terms with her assessment of F's credibility on the sexual abuse issue, but her failure to do so was not fatal to her conclusion. In any event, it was plain that the judge had rejected F's denial of abuse, and references to him and to his evidence at various points in the judgment made it plain that she had not formed a good impression of him. J's allegation that she had been touched sexually by F and had been required to touch him did not require a detailed analysis of the credibility of other family members.

(3) The judge had been entitled to conclude on the evidence that there had been no contamination of J's evidence.

(4) The judge had been entitled on the evidence to hold that the threshold criteria under s.31 had been satisfied in relation to all three children. The court declined to reverse the judge's findings of physical and emotional abuse and the appeal was dismissed.

In Re S, a decision of the Court of Appeal of 5.03.08, as yet unreported, it was held that in care proceedings there was no probative value in allowing an expert witness to have access to evidence relating to mere allegations and complaints of a father's sexual misbehaviour in the past which had not led to a prosecution. The local authority had sought to disclose to a joint expert instructed to assess the parents' parenting abilities a) various reports and documents relating to the father's acquittal on charges of sexual misbehaviour as well as b) allegations and complaints of non-prosecuted sexual behaviour. The Judge at first instance had allowed all this disclosure. The local authority argued that these allegations were relevant as part of the historic background and relevant to the assessment of the father's parental and familial development. The Court of Appeal held that it was already a general principle that mere allegations and complaints of prior misbehaviour on the part of a family member were irrelevant to a consideration by a court of public law matters: Re R [2002] 1FLR 755 applied. There was no logical reason why the principle should not be extended to material conveyed to experts. Accordingly the evidence relating to mere allegations of previous sexual misbehaviour should not be provided to the expert. However the expert should be provided with details of the acquittals which were relevant. It is not completely clear the basis for the distinction between details of acquittal which were deemed relevant and details of mere allegations which were not; save that presumably in the former the evidence was presumably strong enough to go to a jury. Given the different standard of proof in family cases and the inclusive approach to evidence normally adopted, subject of course to the weight to be attached to such evidence, the decision to exclude such evidence from consideration by the expert is an interesting one. Furthermore it was held by the Court of Appeal that experts should be spared the task of reading through unnecessary or peripheral documentation that might otherwise detract their attention from the task at hand whilst also inflating costs. In my experience you can guarantee that if you don't send an expert all the evidence they will be asked questions about documents they haven't seen.

Residential assessments
In Re S (Children) [2007] EWCA Civ 1430, the Court of Appeal, in yet another Cassell Hospital case, refused the application by the local authority for permission to appeal an order allowing a further period of residential assessment for a family subject to a care plan. The extension for assessment was granted after the father unexpectedly joined the family unit at the assessment unit. As this eventuality had not been envisaged in the agreed, amended care plan, the judge directed that a further twelve week period of assessment should commence. The local authority was resisting this partly on the basis of additional costs involved, namely £60,000. Thorpe LJ was sympathetic to the local authority's concern that an initial 12 week assessment should not, step by step, be extended so that the final period they were paying for was not 12 weeks as planned but 12 months. A further complication was that the assessment period would end six weeks prior to the scheduled final hearing and there were no plans as to what should happen during that time as it was felt that there could be no further assessment order under s38(6). In refusing the appeal, Thorpe LJ reviewed the position of the experts involved, who differed on how to achieve a separation if that was the outcome at the final hearing. That consideration, taken with the gap between the assessment and the hearing, led Thorpe LJ to emphasize that the parties should engage in "parallel planning" so that either eventuality is considered before the outcome is decided. Another lesson to be learnt from this case is that where the parties agree the way forward and the care plan is a fixed period at a residential unit, everyone should consider all the eventualities that may arise after the fixed period of assessment ends, including the possibility of any extension of the period and resolve any disagreements arising before the initial assessment starts; as clearly it is more difficult to oppose an assessment being extended once it is half way through.

Removals at birth
The case of R v Nottingham City Council [2008] EWHC 152 (Admin), a decision of Munby J has received a high level of media attention. The applicant mother (M) applied for an order that she should be reunited with her newborn baby (X). M had a history of alcohol and drug abuse and had self-harmed. She had been in the care of the respondent local authority. As a result, although she was 18 years old at the time of giving birth, she was entitled to look to the local authority for continuing support. Prior to M giving birth, an inter-agency child protection conference was held and a birth plan was prepared for medical staff at the hospital where M gave birth. The conference recommended that the local authority should apply for an interim care order following X's birth and organise a care placement. It noted that X should not be removed from the ward by M and an emergency protection order should instead be sought if the care order was not in place. It decided that X should remain in the hospital until taken into foster care. The birth plan given to the hospital stated that X was to be removed from M's care at birth but made no reference to obtaining an emergency protection order or interim care order. Approximately two hours after M gave birth, X was removed from her and placed in a different room in the hospital. M submitted that separating her from X was unlawful as it had been done without legal authority.

The Court held that local authorities and social workers had no power to remove children from their parents unless they had first obtained judicial sanction for what they were proposing to do. Only a court could make a care order. Only if a court had authorised that step, whether by making a care order or an interim care order or in some other way, could a local authority or social worker remove a child from a parent. That also applied to a hospital and its medical staff. However, that was subject to two qualifications. A social worker or a nurse was entitled to intervene if that was necessary to protect a baby from immediate violence at the hands of a parent. However, there was no suggestion that M posed any risk to X of immediate physical attack or physical harm. Doctors, midwives and nurses were entitled to separate a child from its mother if medical necessity dictated, even if she objected. However, in the instant case, there was no question of any medical justification for the intervention, let alone any medical emergency. X was removed simply because of the birth plan. In addition, of course, the local authority could have asked the police to take X into police protection which, had the police agreed, would not have required any judicial sanction.

In subsequent judicial review proceedings brought by the mother in the light of the removal of her baby at birth the claim was founded on a) deficiencies in the applicant's pathway plan, designed to assist her as she left care and regulated by the Children (Leaving Care) (England) Regulations 2001, and b) opposition to the local authority's claim that the mother had consented to the removal of her child soon after his birth. Munby J found both that the pathway plan was deficient, particularly as the personal adviser involved was in conflict as she had also helped to devise the plan, and that the mother had not consented to the removal of her child simply because she had not raised an objection at the time. The question of possible damages was adjourned to be considered at a subsequent hearing.

Inherent Jurisdiction
The case of KC and NC v City of Westminster v IC [2008] EWCA Civ 198 also generated a lot of publicity coinciding as it did with the Archbishop of Canterbury's pronouncements on Sharia law. The Court of Appeal held that the marriage, celebrated in and valid according to the law of Bangladesh and Sharia law, of a Bangladeshi woman to a British national who lacked the capacity to marry under English law by reason of his mental impairment, was not recognised as a valid marriage in the jurisdiction of England and Wales.

The appellant parents appealed against a declaration ((2007) EWHC 3096 (Fam)) that the marriage of their son (IC) was not valid under English law. KC and NC were British nationals of Bangladeshi origin who were domiciled and habitually resident in England and Wales. IC, who suffered from autism and severe impairment of his intellectual functioning, lacked the fundamental capacity to marry under English law. Marriage was not, however, precluded in Bangladesh and IC was married in a Muslim ceremony conducted over the telephone, he being in England and his bride being in Bangladesh. The parties accepted that, as a matter of law, the marriage had been celebrated in Bangladesh. In declaring the marriage to be invalid under English law, the judge applied the dual domicile rule, refused recognition of the marriage on the grounds of public policy and rejected submissions made by KC and NC that, pursuant to the Matrimonial Causes Act 1973 s.12(c) the marriage was merely voidable rather than void and the court therefore had no power to deny it recognition. The issue was whether he had been right, on those bases, to make the declaration he did.

(1) The dual domicile rule was a rule of general application and was not limited to those cases in which the marriage was prohibited in the jurisdiction of the domicile of one of the parties, X City Council v MB (2006) EWHC 168 (Fam), (2006) 2 FLR 968 approved. Even though there was authority to the effect that there were alternative bases for the recognition of a foreign marriage falling foul of the dual domicile rule, such exceptions to the rule did not assist NC and KC, and the judge had been correct in his application of it, Vervaeke v Smith (1983) 1 AC 145 HL distinguished.

(2) Equally, the judge had been correct to introduce public policy considerations. Not every marriage that was valid according to the law of some friendly foreign state was entitled to recognition in England and Wales, Cheni (otherwise Rodriguez) v Cheni (1965) P 85 considered. IC lacked the capacity to marry in English law and it was inconceivable that he could be lawfully married in England and Wales. There was expert evidence to suggest that the marriage was potentially highly injurious to him and, moreover, were his wife to engage in physical intimacy with him she would be guilty of rape or sexual assault under English law. NC and KC's engineering of the marriage was potentially, if not actually, abusive to IC and it was the duty of the court to protect him from such abuse. The refusal of recognition of the marriage was an essential foundation of that protection and was justified even if not precedented.

(3) The judge had, however, been wrong to reject submissions founded on s.12(c) of the 1973 Act. The reasoning in Re Roberts (Deceased) (1978) 1 WLR 653 CA (Civ Div) was clear and binding; lack of consent made a marriage voidable rather than void. Moreover, the Family Law Act 1986 made it clear that no declaration could be made by a court to the effect that a marriage was at its inception void. The only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. The appeal would therefore be allowed, but only to the extent of varying the language of the declaration so that it declared that C's marriage, valid according to the law of Bangladesh, was not recognised as a valid marriage in the jurisdiction of the English courts.

In Re G (Adoption: Placement Outside Jurisdiction) [2008] EWCA Civ 105, the Court of Appeal considered the provisions of the Adoption and Children Act 2002, s 84(4), under which an application for an order granting parental responsibility to applicant adopters cannot be made unless the child's home had been with the applicants at all times during the preceding 10 weeks and held that provision did not require the physical presence of each applicant throughout. It further held that the requirement in Adoptions with a Foreign Element Regulations 2005 (SI 2005/392), para 10(b), that the 'relevant foreign authority' confirm in writing that the child was or would be authorized to enter and reside permanently in the relevant foreign country, referred to the foreign equivalent of the English adoption agency, not to a governmental body, and the confirmation did not need to be in absolute, unconditional or unqualified terms. The foreign agency was to provide confirmation to the effect that, provided the applicants followed all relevant procedures in the UK and any adoption-related procedures under the law of the foreign state that were prerequisites to the child being allowed into that state then, from the agency's knowledge and experience, the child would be authorized to enter the foreign state.

Sir Mark Potter P said, giving the judgment of the court, that all parties were agreed that adoption was in G's best interests. Although Mr C had only spent three of the required 10 weeks together with his wife and G in the English home, their Lordships agreed with the trial judge that the issue was one of fact and degree; physical presence throughout the period was not necessary to satisfy the requirements of s 84(4) provided, as here, the domestic authorities were able satisfactorily to assess the prospective adopters and the relationship they enjoyed with the child. With regard to the second ground of appeal, it was accepted on all sides that reg 10(b)(iv) of the 2005 Regulations had not been complied with and consequently the judge had no power to make the order by virtue of s84(3) of the 2002 Act. However, until the prospective adopters could produce such order demonstrating that they had exclusive parental responsibility for G, the United States embassy in London was not prepared to grant G a visa. This classic double bind or Catch 22 could not be simply overridden. However, in their Lordships' view the correct reading of reg 10(b)(iv) was that first, the confirmation required to be given by the "relevant foreign authority" was to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and secondly that it did not need to be given in absolute, unconditional or unqualified terms; what was required was confirmation to the effect that, provided all relevant procedures in the United Kingdom, and any adoption related procedures under the law of the foreign state which were prerequisites to the child being allowed into that state were followed, then, from its knowledge and experience, that child would be authorised to enter the foreign state. The appeal would be adjourned for 28 days and the local authority and children's guardian invited to approach the American Adoption Agency to enquire if that organisation was able to provide the level of confirmation necessary; if the court were thus satisfied that the fresh evidence fulfilled the requirements the appeal would be dismissed and the judge's order under s 84 of the 2002 Act confirmed.

In Re T [2008] EWCA Civ 542; the Court of Appeal held that the making of a placement order for adoption in respect of two children had been premature as it would not have been known whether adoption was achievable or in their best interests until after the outcome of a specialist foster placement.

The appellant father (F) appealed against a care order and a placement order made in respect of his two sons (T). The local authority proposed that T be moved to a therapeutic foster placement, with a view to adoption thereafter. T's guardian expressed concerns about whether an adoption would prove successful because of T's difficulty making attachments, and suggested that T might fare better in long term foster care. The judge found that adoption was in T's best interests. F suggested that the application for a placement order be adjourned until the outcome of the therapeutic foster placement was known, but the judge held that it was in T's interests to make the order immediately to give the local authority the greatest possible certainty and flexibility for the future. F submitted that (1) the judge should not have made the placement order, as although it was a case in which adoption would be the best solution if achievable, it could not be known whether it would be in their best interests until the outcome of the planned therapeutic foster placement was known; (2) no full care order should have been made because there were deficiencies in the local authority's care plans.

(1) Even if there was a real possibility that an adoptive placement might not be found, it did not follow that adoption would not be in the best interests of a child. Mere uncertainty as to whether adoption would actually follow was not a reason for not making a placement order. However, in the instant case it was not simply a matter of potential difficulty of placement for adoption; T were not, at the time of the instant hearing, suitable for placement for adoption. It would not be known whether they ever would be suitable until the therapeutic foster placement had been carried out over several months. Also, it might be found that adoption was not in T's best interests, because their needs could better be met by the kind of substitute family found only in long term fostering. The generalised consideration that adoption would ideally be best did not, on the unusual facts of the case, lead automatically to the conclusion that it was yet possible to say whether it was in the best interests of T. The judge's finding that adoption was in T's best interests, and thus that a placement order should follow, was premature. The placement orders were set aside and the application for placement orders adjourned.

(2) At least in one respect the care plans were deficient, because they did not make clear that the local authority's plan was for adoption, but for long term fostering if either an adoptive placement failed or proved impossible. However, there was no doubt at the hearing what the plans were. The deficiency could have been cured by amendment, and would have been if the point had been taken. It provided no reason against making a care order.

Alex Verdan QC
4 Paper Buildings