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Children: Public Law Update (December 2007)

Alex Verdan QC, of 4 Paper Buildings, reviews the key public law children cases from the past 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:

Standard of Proof
In A Council v B [2007] EWHC 2395, on 19.10.07 Charles J in Schedule A to the Judgment reviews the law in relation to the standard of proof and in particular what the court's and other public authorities' approach should be if it cannot conclude a finding of harm is more likely than not, but does conclude the allegation remains a real possibility. It explores the tension between the Re H and R likelihood test at stage 1 jurisdiction fact finding and the Re O and N real possibility test at stage 2 welfare risk management and suggests the real possibility test should have broader application than simply for unidentified perpetrators. It suggests that at stage 2 the court should have regard or more regard to real possibility findings and even to unproven and abandoned allegations. This case is going to the Court of Appeal.

Interviewing Children
In Re M [2007] EWCA Civ 1150, the Court of Appeal, on 25.10.07, considered various issues relating to the interviewing of children. In care proceedings the judge had found that the father was responsible for serious assaults on two of the four children; subsequently both parents faced serious criminal charges relating to assault and cruelty. The judge granted the parents disclosure of certain care proceedings documents for the purposes of the criminal proceedings. However, the judge refused the parents' application for orders permitting unidentified experts to interview the children, and also an application for permission for the parents' solicitor in the criminal proceedings to interview one of the (apparently) uninjured children, with a view to taking a statement from her, which might or might not be used in those proceedings. The judge noted that the uninjured child had nothing to contribute to the case. On the evidence before the judge, the Court of Appeal held that it had been correct not to allow the children to be examined by unspecified experts, however, the judge should have granted permission allowing the parents' solicitor to interview the uninjured child; the child might well have something to contribute to the case if she were interviewed and were thought to be reliable. In any event, that was a matter that it was proper for the parents, in the context of their defence of criminal charges, to seek to do. Whether or not the child gave evidence was an entirely different question, and would be a matter for the judge hearing the criminal trial. There had been some uncertainty as to the nature of the jurisdiction being exercised by the judge, but the existence of an inherent jurisdiction to determine matters of this kind was clearly established.

Physical Chastisement
In Re F [2007] EWCA Civ 516, the Court of Appeal considered the extent of physical chastisement necessary to justify removing children for adoption. The parents had three children, R, L and C. All children were under the age of three. The father moved out of the family home. The mother reported to the health visitor the problems that she had coping with R, and the fact that she was not managing. Concerns arose when R disclosed to a nursery teacher that the father had hit him on his bottom with a belt because he would not stay in bed. R was badly bruised. One month later, bruising was seen on L's body. He had bruising on his body consistent with an admission by the mother that she had hit him. No bruises were found on C's body, but the mother admitted that C too had been subjected to unreasonable chastisement. The children were voluntarily accommodated by the local authority. Care proceedings were commenced. A fact finding hearing was held where the judge concluded, inter alia, that R had been struck with a belt; that the mother was depressed; that the mother had subjected all three children to unreasonable chastisement; and that she was unable to cope with the children when they exhibited challenging behavior. The judge made an order that R was to be placed in the care of the local authority and placed for adoption. As to L and C, he described them as both having attachments to the mother and father and concluded that a further assessment of the mother's ability to care for the children was required. He ordered that the interim care orders continue. The local authority appealed. It contended that the judge had erred in refusing to make a care order in respect of both L and C. The Court of Appeal upheld the Judge's decision. Of particular interest is their view that regard had to be had to the fact that there had only been one isolated incidence of violence. Physical chastisement could not be condoned, but in the instant case the chastisement had not been of a "persistent enough nature to justify removal" of the children into the care of the local authority and then to be placed for adoption.

Hearsay Evidence
In Re W [2007] EWCA Civ 1255, on 8.11.07, the Court of Appeal held that a judge had erred when making a care order in favour of a local authority, as he placed significant weight on hearsay evidence of threats made by the mother about the father, and used it to support the findings of experts that the father and his wife were unable to meet the child's needs, where the father and his wife had made an application for the child to be brought up in their household. Evidence had been put before the judge of threats made by the mother to her counsel and to the guardian that if S was placed with the father she would burn their house down or try and abduct S at the first opportunity and would continue to do so. The Court of Appeal held that the evidence of the threats from the mother, which were a significant aspect of the judgment, had no evidential foundation other than hearsay. The threats made to the guardian were as a result of the guardian calling the mother to ask what her views would be if a residence order was made in favour of the father. It was very significant that the threats emerged for the first time during the course of the trial. An obvious possibility was that they were either an emotional reaction to the mother's inability to be involved in the process, or were purely strategic and designed to damage the father's case. As the mother had failed to attend the trial, there had been no opportunity to cross-examine her and no opportunity for the judge to assess her. There was a fundamental risk of injustice if the order was allowed to stand, and it was appropriate to order a retrial.

Split Hearings
In Re AP v Vale of Glamorgan County Council [2007] EWCA Civ 1265, on 30.11.07, the Court of Appeal held that a judge had not been justified in finding as he did that the appellant's children were likely to suffer significant harm so as to satisfy the threshold criterion under the Children Act 1989 s.31(2)(a). The court gave guidance as to the correct approach as to when the threshold criteria should be considered and determined when a split hearing ordered. It held that as a matter of practice when a split hearing was ordered, express consideration should be given by all parties and the court to whether satisfaction of the threshold criteria would be considered and determined as part of the first, the final or an intermediate hearing, In any case where future risk was relied on, it was very important that a document should analyse and describe how that risk was alleged to arise from the alleged primary facts.

Tracing Members of Birth Family in Adoption Cases
In Re C v XYZ County Council [2007] EWCA Civ 1206, the Court of Appeal on 23.11.07, held that a local authority was not compelled under the Adoption and Children Act 2002 to disclose the existence and identity of a child to the extended maternal family and, if he could be identified, the putative father and any extended paternal family, against the mother's wishes. The appellant mother appealed against the decision of a judge directing the first respondent local authority to disclose the existence and identity of her baby to the extended maternal family and, if he could be identified, the putative father and any extended paternal family, against the mother's wishes. The Court of Appeal held that when a decision was required to be made about the long-term care of a child, whom a mother wished to be adopted, there was no duty to make enquiries which it was not in the interests of the child to make. Enquiries were not in the interests of the child simply because they would provide more information about the child's background: they had genuinely to further the prospect of finding a long-term carer for the child without delay. Such an interpretation did not violate the father's right to family life under the European Convention on Human Rights 1950 Art.8 because he had no family life with the child. It was not a violation of a Convention right to deprive him of the possibility of obtaining a right to respect for family life with the child. He therefore had no Convention right under Art.8. The overriding need was to find the child a permanent home as soon as possible before the bond with her foster parents developed further. The child's best interests would be served by a fast track placement for adoption.

A similar issue arose in Re L [2007] EWHC 1771 (Fam), where the local authority needed guidance as to whether they should attempt to contact the natural father before placing the child for adoption. The mother had rejected the child at birth and the child was being cared for by the local authority. The mother did not wish any of her own family to be informed of the child's existence, and had refused to supply any information as to the father's identity or whereabouts, claiming that she did not know anything that would be of any use. The authority sought guidance from the court as to whether it should attempt to contact the natural father or the maternal family. In accordance with the recommendation of the guardian the judge ordered that the authority need not contact the maternal family, but required the mother to attend court to disclose key information about the father. The mother duly attended and said that no further information could be provided. The court agreed with the statement in Z County Council v R [2001] 1 FLR 365 that it was lawful to respect and maintain the confidentiality of mothers in certain circumstances. There had almost certainly been no family life between the mother and father, but the court in any event had proceeded on the basis that the father's Art 8 rights were engaged. There was no effective mechanism by which the court could compel the mother to reveal the fathers identity. The court could theoretically order a mother to disclose the identity of the father, but enforcement of such an order was a different matter. No other steps sensibly could be taken. Cross-examination and exposure to a charge of contempt in relation to such an issue was an unattractive and unsettling prospect. The court should not seek to force or to coerce someone in the mother's position.

Section 24 of the Adoption and Children Act 2002
In Warwickshire County Council & M & L [2007] EWCA Civ 1084, the Court of Appeal held that when deciding an application under the Adoption and Children Act 2002 s.24(3) for leave to apply to revoke a placement order, on the applicant establishing that there had been a change in his circumstances, a discretion arose in which the court had to weigh both the welfare of the child and the applicant's prospects of success. In Re P [2007] EWCA Civ 616, the court had held that in exercising its discretion whether to grant parents leave to oppose the making of an adoption order under s.47(5) of the 2002 Act, a court was coming to a decision about granting leave in respect of any action that might be taken within s.1(7)(b) of that Act. Thus, the principle contained in s.1 of the 2002 Act, that the welfare of the child was the court's paramount consideration, applied to a decision on an application under s.47(5). It did not, however, apply to an application under s.24(3) of the 2002 Act for leave to apply to revoke a placement order, because to determine such an application was to come to a decision about granting leave for the initiation of proceedings by an individual under the Act and did not fall within s.1(7). Nevertheless, it did not follow that the welfare of the child was therefore not relevant at all. It was well established that a determination whether to grant leave to apply for an order relating to a child could require the court to exercise a discretion in which the child's welfare, although relevant, was not paramount. It was not clear why Parliament should have provided that the child's welfare should be paramount in the discretionary exercise under s.45(7) but not in that under s.24(3). There was no situation other than s.45(7) in which the facility to participate in proceedings relating to a child was governed by the paramountcy of a child's welfare. Therefore, in relation to a child's application for leave under the Children Act 1989 s.10(8), the approach taken in Re SC (1994) 1 FLR 96 was preferred to that taken in Re C (1994) 1 FLR 26. Whenever it was invested with a discretion whether to grant leave for proceedings to be issued, the court would have regard to the applicant's prospects of success in the proposed proceedings. In conducting the discretionary exercise under s.24(3), the court might usefully borrow the language of the test set out in CPR r.52.3(6) and ask whether the applicant would have a real prospect of success. The purpose of using that form of words was to identify factors relevant to the exercise of the discretion and it could not be written in stone that the prospect of success had to be real. On establishment of a change of circumstances, a discretion arose in which the welfare of the child and the prospect of success had both to be weighed. Analysis of the prospects of success would not always, but would almost always, include analysis of the welfare of the child. The judge's approach to s.24(3) was wrong. In the circumstances, the mother's applications had no real prospect of success and it would not serve the welfare of the children for her to be granted leave to apply to revoke the placement orders. The grant of leave was set aside

Amplification of Judgments
In Re A [2007] EWCA Civ 1058 on 19.09.07, the Court of Appeal reminded us that if parties considered that a Judgment was unclear in any key respect there was a duty on them to apply to the trial judge for amplification of those parts before applying to appeal. After a fact finding hearing, the trial judge had found that neither parent could be exonerated from causing some of the injuries to the child. The father sought to appeal that finding on the grounds that the evidence was that the injuries could only have been caused by the mother. The appeal was dismissed and LJ Thorpe said in the course of giving Judgment that where parties consider that there is doubt as to the Judge's position they should apply to the Judge for amplification specifically questioning the Judge as to what was impliedly being held. This should ideally be done when Judgment is handed down or as soon as possible thereafter after a period of time has past for reflection but in any event before any appeal is lodged.

Urgent Appeals
Helpful guidance was given by Wall LJ in Re S [2007] EWCA Civ 958 on practice and procedure with regard to urgent appeals in children proceedings. The case concerned a 4 year old who had been made subject to an interim care order resulting in his removal from his father's care and placement in foster care. The matter came before the Court of Appeal 2 months after the removal. The Court expressed serious concern about the delay that had occurred before the appeal was considered and stated what could have happened to have prevented that. The trial judge could have been asked for a stay. Had he refused he could have been asked to delay implementation of the interim care order to allow an application to the Court of Appeal. Had he refused that, the Court of Appeal could have been approached immediately by telephone on 0207 947 6000 during office hours or 6240 outside for an urgent stay pending an on notice hearing. Lord Justice Wall stressed that drift was unacceptable in such urgent cases and that in urgent children cases the Court of Appeal could move very swiftly indeed thus avoiding any separation of such a young child from his or her parent. It was stressed that this procedure must not be abused and only should be used for those very urgent cases.

Alex Verdan QC
4 Paper Buildings