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Home > Articles > 2015 archive

Children Public Law Update (May 2015)

John Tughan QC of 4 Paper Buildings reviews recent judgments of particular importance to all practitioners in public children law

 

John Tughan QC4 Paper Buildings

In this update I will consider recent developments in public law cases including:

(i) recent affirmation of the guidance on split hearings

(ii) a Grepe v Loam order to deal with future applications by a litigant in person

(iii) guidance on ex parte applications, in the context of young people being at risk  of travelling to ISIS countries

(iv) the inter-relationship between a "light" threshold finding and a plan for  adoption

(v) an appeal in relation to a child giving evidence which would support the  proposition that the alleged abuse did not happen

(vi) a case involving criticism of the paediatric approach to allegations

(vii) consideration of capacity and veracity assessments.


Split Hearings
In the matter of BK-S (Children) (expert evidence and probability) [2015] EWCA Civ 442 the Court of Appeal commented about the fact that the case had been dealt with as a split hearing and that it should not have been case managed in that way and the decision to split the hearing,

"cannot have been right given that the issue to be decided was perpetration in the  context of an incident of harm, rather than whether the harm occurred."

The court cited the guidance in the matter of S (A Child) [2014] EWCA Civ 25 at [27] to [31] and concluded that in BK-S there was no discrete issue that would determine the proceedings where harm has been suffered and the perpetrator of that harm is unknown.  The court said that the social work assessments of those in the pool of potential perpetrators may cast important light on the allegations that are to be determined and upon the reliability of those in the pool and the other witnesses and materials that are available.

The guidance in S (A Child) was to the following effect:

(i)  Unless the basis for a decision to split the hearing is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. 

(ii) the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. 

(iii) split hearings were used as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J).  Over time, they also came to be used for the most complex medical causation cases.  For almost all other cases, the procedure is inappropriate. 

(iv) The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. 


Use of Grepe v Loam Orders
Whilst K v K [2015] EWHC 1064 (Fam) was a private law case, the President's decision contains a procedural direction for dealing with a litigant in person that may be relevant to all cases.  The President relied upon an 1887 decision and said this:

"This further attempt by the father to re-litigate, yet again, matters which have already been concluded against him, demonstrates not merely the continuing need for the section 91(14) order but also the need for a corresponding order to prevent him making further applications without permission in relation to the financial matters dealt with in the order made by District Judge Gordon-Saker.  In relation to that I propose therefore to make a Grepe v Loam order: see Grepe v Loam (1887) 37 ChD 168, Ebert v Venvil and Another [2000] Ch 484 and Bhamjee v Forsdick and others (Practice Note) [2003] EWCA Civ 1113, [2004] 1 WLR 88.  The Grepe v Loam order should provide, and the section 91(14) order should be amended to provide, that all future applications, including any applications by the father for permission to apply, are reserved to the President of the Family Division unless released by the President to a judge of the Division."


Cases of Risk of Young People Travelling to ISIS Countries

In The London Borough of Tower Hamlets v M [2015] EWHC 869 (Fam) Hayden J was considering the risk of young people travelling to ISIS countries.  The young people were made wards of court.  Passport orders were made so as to remove the passports from the young people.  The court held that the removal of an individual's passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual's freedom and personal autonomy.  It is never an order that can be made lightly.  The duty of candour in such applications extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.   Because of the mistakes made in one of the applications before the court, Hayden J had cause to remark:

"What, however, is clear is that the conventional safeguarding principles will still afford the best protection.  Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require."

A number of principles were distilled from the procedural events and are important for all urgent applications to the court

(i)     The outline order sought should be drafted prior to the urgent hearing

(ii)    the issue of how quickly the case can be restored on notice is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights and it should be thought about from the outset

(iii)     the cases require the instruction of senior and experienced lawyers

(iv)    the welfare principle is paramount and this cannot be eclipsed by wider considerations of counter terrorism policy or operations but the court must consider an informed understanding of that wider canvas

(v)    It will never be satisfactory merely to offer verbal assurance that the police, security forces or those involved in counter terrorism, are aware of and support the application.  There must in future always be 'hard' evidence

(vi)  Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process.  Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system

(vii)  careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity

(viii) when considering reporting restictions attention should be given to social media and other non conventional media outlets

(ix)  The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. 


Inter-Relationship of a "light" Threshold Finding and a Plan for Adoption
In the matter of B and G (Children) (No 3) [2015] EWFC 27
 is interesting for the inter-relationship of "light" threshold findings with the plan for adoption.  Munby P having refused to conclude that the Local Authority had established female genital mutilation,  the court went on to consider the remaining threshold issues of (i) M's mental health, (ii) domestic violence, (iii) neglect and physical abuse, and (iv) lack of cooperation / engagement.  The Local Authority accepted that the outcome would be dependent on the findings of the court and the two options before the court were adoption or placement with F under a supervision order.

The court concluded that M was not able to look after the children at present based on her mental health presentation.  There was marital disharmony and discord and some domestic violence at the lower end of the scale.  The children had experienced instability and inconsistency of care but were delightful and endearing children and did not present as neglected children and had clearly experienced positive parenting.  There was parental acceptance of an early failure to co-operate with the Local Authority.

As a result of those findings the President was, "prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin."  As a result, adoption could not be sanctioned and would be a wholly disproportionate response to the comparatively little that has been found proved against either F or M, not least given the quality of B and G's continuing relationship with both F and M.

The Guardian sought care orders.  The President disagreed and held that it would be "a very strong thing, in circumstances such as exist here, to impose on a local authority an order more stringent than it is proposing, and in my judgment there is no adequate justification for doing so."


Admissibility of Child Evidence
Re R (Children) [2015] EWCA Civ 167
 concerned an appeal by a child against an order refusing permission for her to give evidence.  The proceedings related to her and her younger sister.  The allegation was that the father had sexually abused both children and that the mother had failed to protect them.  The Local Authority and the Guardian objected to her giving evidence.  King LJ gave the lead judgment in the Court of Appeal and summarised the test in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 as follows:

"i) The fair balance between Article 6 rights and the Article 8 rights of the perceived victim may mean that in care proceedings a child should not be called to give evidence but that outcome, (i.e. that a child should not give evidence), is a result of the balancing exercise and not a presumption or even a starting point.[22]

ii) The essential test is whether justice can be done without further questioning of the child [30]

iii) The court weighs two considerations:

a) The advantages that the child giving evidence will bring to the determination of the truth (Limb 1).

b) The damage giving evidence may do to the welfare of this or any other child (Limb 2)."

The 'essential test' and therefore the yardstick, against which both limbs must be considered, is that justice must be done to all the parties when deciding whether permission should be given for a child or young person to give evidence.  The Local Authority and the Guardian submitted that welfare considerations outweigh the enhanced value of live evidence.  They also submitted that the blanket denial by the child of any sexual abuse means that cross examination would therefore be limited and of limited value.

King LJ disagreed and thought that the Local Authority and the Guardian were approaching the essential test on the assumption that the child was not telling the truth.  The key features to inform the application of the test were the maturity and intelligence of the 14 ½ year old girl who, over and above the strain resulting from the situation in which she finds herself, has no additional specific vulnerabilities. She had a strong wish to give evidence.  The unusual fact that, far from making allegations as a victim against her father, her evidence was that the allegations made are untrue.  The evidence was far from being marginal and went to the heart of the case,

"she alone can give primary evidence as to whether or not her father abused her; the only other direct evidence, (which is vigorously challenged by the father), comes in the form of assisted interviews with her severely autistic seven year old sister.  Even carefully controlled and regulated cross examination may go far further than the eliciting of only a simple blanket denial of the central allegations; much valuable evidence may be given by [her] in relation to the background and the dynamics of the household and the relationships within it."


Judicial Concern on the paediatric approach to allegations
In Re P and Q (Children - Care Proceedings - Fact Finding) [2015] EWFC 26 Pauffley J was concerned with extreme, lurid and public allegations involving sexual abuse, satanic practices, allegations against a school and the dissemination of all these allegations on the internet.  The sexual allegations made by the children were recorded by the Mother and uploaded to Youtube where they were viewed 4 million times.  None of the allegations was true and the court found that the children were forced to concoct horrific accounts.  Pauffley J was troubled by the involvement of the Consultant Paediatrician in the case and the strength of conclusion reached so long after the Cleveland Inquiry.  The children had a number of different examinations and there were "unusual" discussions of the allegations with the paediatrician.  The court concluded that,

"If there is one key message at the end of this inquiry it is that it is not and never will be sufficient to consider just one or two evidential features in isolation.  It is always necessary to take account of all the material not just a selection. Those who arrived at their own early conclusions on the basis of partial material were woefully misguided."


Capacity and Veracity Assessments
In Wigan Council v M [2015] EWFC 8 Peter Jackson J considered the capacity of a witness to give evidence as well as the veracity of the witness.  He held that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly, is a proper subject for expert advice, where necessary.   However, such advice is obviously not necessary in every case.  In this case there was ample information already available to the court to safeguard the children's interests and the overall fairness of the process.  The children's social worker knew them well enough to form a view.  The parties were represented by experienced legal teams, albeit leading counsel had not yet been instructed.  The younger child had a Children's Guardian.  With this range of professional involvement, the court was in a good position to identify the needs of the situation.  The instruction of a psychologist on the issue of capacity was unnecessary, at least at that stage, and as such there was no basis for permitting it.  

In relation to the veracity or validation exercise the principles were as follows:

"1)  As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.  That was the conclusion of the Court of Appeal in Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, interpreting Section 3 of the Civil Evidence Act 1972.  It held that expert evidence dealing with issues, including the ultimate issue, was admissible, subject to the overriding requirement of relevance, which, together with questions of weight, was a matter for the judge.  At page 210, Butler-Sloss LJ said:  "The modern view is to regulate such matters by way of weight, rather than admissibility.  But when the judge is of the opinion that the witness's expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him."

2)  The Court of Appeal left open the question of whether and to what extent the court had a power to exclude evidence that was admissible and potentially relevant.  That question has now been answered by FPR 2010 Rule 25.4 which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings.  The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.

3)  In my view, cases in which it will be necessary to seek expert evidence of this sort will nowadays be rare.  While the decision must rest on the facts of the individual case, judicial awareness of these issues has greatly increased, from the Cleveland Inquiry in 1987 to the most recent iteration of the principles of Achieving Best Evidence in 2011.  In the two decades since Re M and R (above), understanding has naturally moved on.  The process continues to evolve, with the final report of the Children and Vulnerable Witnesses Working Group set up in 2014 by the President of the Family Division expected shortly.  The overall result is that judges have been trained in and are expected to be familiar with the assessment of evidence of this kind.  The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate."

This certainly accords with the recent experience of this practitioner and the (now) rarity of a veracity expert in cases involving the assessment of the evidence of a child.

23 May 2015