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Home > Articles > 2016 archive

Children: Public Law Update (August 2016)

John Tughan QC, 4 Paper Buildings, reviews recent decisions relevant to public children lawyers, including two important recent decisions of the Court of Appeal.

















John Tughan QC
, 4 Paper Buildings


In this quarterly update I would like to discuss two important decisions that leap out of the record of recently decided cases.

Re W (A Child) [2016] EWCA Civ 793
The first is Re W (A Child) which dealt with the issue addressed by a number of different courts recently and which has formed the basis of comment in this quarterly article before.  Those earlier decisions were by Holman J in A&B v Rotherham [2014] EWFC 47 (5th December 2014), the Court of Appeal in M'P-P (Children) [2015] EWCA Civ 584 (June 2015) and Russell J in Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039.

In Re W (2016) McFarlane LJ summarised the issues under consideration in this way:

"This appeal raises the following issues which may be of general importance:

a) The approach to be taken in determining a child's long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 ("nothing else will do") in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged."

The child (A) was born on 1st May 2014 and neither of her parents were able to look after her. The child protection process commenced on the day of her birth and she was placed with foster carers when only one day old. On 21st October 2014 a care order was made, coupled with an order authorising the local authority to place A for adoption. Due to the non-cooperation of the parents and the maternal family, the social workers did not have any knowledge of the paternal family and were, consequently, unable to trace them.  In December 2014 A, then aged seven months, was placed with prospective adopters (the X family).  In April 2015 Mr and Mrs X applied for adoption of A.  In June 2015 the paternal grandparents were located as a result a further set of care proceedings relating to a second child (A's full sibling).  They indicated their willingness to care for A and sought to oppose the adoption of her.  The evidence was that A was well and securely placed with the X family.  J was placed with the paternal grandparents and a third sibling (K) was placed with a paternal aunt.  The High Court (Bodey J) dismissed the adoption application by the X family and made a special guardianship order in favour of the paternal grandparents.  The X family appealed.

In giving the lead judgment in the Court of Appeal, McFarlane LJ was at pains to found the decision on the specific evidential issues in this case as opposed to more general policy considerations.  The problems with the evidence before Bodey J were set out.  The Guardian came in for heavy criticism.  The early analysis, filed prior to other important evidence, was "downright wrong" in places and "wholly inadequate". The determinative factor in the Guardian's analysis was that the paternal grandparents could care for A which then dictated (for the Guardian) that adoption was not in A's best interests.  The high quality care A was already receiving on the basis that it was intended to be a permanent arrangement was evident, yet the Guardian saw that the placement with the natural family had become the paramount consideration without the need for a wider review.  Placement with the natural family was only one of the factors in the case, albeit an important factor.  Further, the Guardian did not deal with the level of attachment that A must have established with Mr and Mrs X and the consequences, both short term and longer term, for breaking that attachment in order to remove her from their home to her that of her grandparents.

The extent of the Guardian's oral evidence and analysis of the impact of a move from the X family was

"… it's certain that there will be a degree of disruption more intense in the early weeks; but after a period of months it will be less acute…but we have to deal with realities. Children are often moved from their families when their carers find it impossible to give permission and we deal with what we have." (or words to that effect).

The separate ISW assessment of the paternal grandparents contained a note of a discussion with the local authority to this effect:

"We shared the opinion that where there was a loving family who were prepared to care for A and the benefits of being brought up by family there could be no justification for a child to be adopted outside the family."

And in a conversation with the Guardian:

"We shared our concern for A who believed that these were her parents and she was secure and happy in their care but also acknowledged that A had a birth family and she had the basic right to be brought up by her family unless there was absolutely no other option."
"
…although I could not discuss confidential matters I did say that at that point in my assessment I could not find any concerns (relating to the paternal grandparents) that would be significant enough to deny a child the right to be brought up by family."

"The fact that she has formed close attachments will, however, enable her to form close attachments with her family and the fact remains that she is not the adoptive child of her prospective adopters and she has family who are willing and desperate to provide her with a high level of care where she will be brought up with her brother, will share family events with her close knit extended family who are totally committed to her. This is, therefore, not a case where "nothing else will do" and it is not my opinion that placement outside her birth family is necessary and proportionate in the interests of the welfare of the child."

The appellant submitted and McFarlane LJ agreed that Bodey J had rightly summarised section 1(4)(f) ACA 2002 but that his references were to the relationship that the child has with "relatives", whereas the statute is not limited to relationships with "relatives" but applies to relationships "with any other person in relation to whom the court…considers the relationship to be relevant". Mr and Mrs X fall into the wording of the statutory language of s1(4)(f) ACA 2002.

In analysing the judgment of Bodey J the Court of Appeal concluded that it was a good example of the comprehensive evaluation of the pros and cons of two competing options that is required by the modern case law.

McFarlane LJ described as "adventurous" the submission that was advanced by the appellants that there was a breach of the European Convention on Human Rights.  Instead he (and the parties) concentrated on the defects in the evidence that undermined the judgment of the court.  A number of important statements came out of the analysis of the Court of Appeal and they include:

• The public policy / human rights submissions were not advanced but are valid.

"Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order ... the establishment of a firm and secure attachment is not one of the primary aims of the [foster] placement, in contrast with adoption."

• "Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances."

• "In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it."

• McFarlane LJ reminded himself of his judgment in Re M'P-P [2015] EWCA Civ 584 and the balance between a family placement and the "status quo" that may unusually be established in a public law case.  There is a useful reminder of the historic status quo cases and also a grounding of modern attachment theory within the terms of the Adoption and Children Act 2002.  Section 1(4)(f), which

"places emphasis upon the 'value' of the relationship that the child may have with a relevant person [and] is particularly important."

• The phrase 'Nothing else will do' is

"…meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase "nothing else will do" is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase "nothing else will do" is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases)."

• "The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life...."

For some time now the Court of Appeal has been at pains to point out the high-water mark of the Re B / Re B-S language.  The court has emphasised that the cases did not change the legal tests but did re-cast the language.  The full judgment in Re W is an interesting dissection of the approach of professionals and first instance courts to these most difficult welfare balances.  It is an important judgment and worthy of careful reading by any practitioner in the field.

Re E (A Child) [2016] EWCA Civ 473
The second important case to be published recently involves the evaluation of allegations of sexual abuse.  In Re E (A Child) the Court of Appeal allowed an appeal against findings of sexual abuse.  The case included a detailed challenge on the evidence that was before the Court as well as more general issues.

ABE breaches
The appellants established the following defects in the ABE process:

(i) the 'truth and lies' aspects of Phase One of the ABE were not undertaken on camera. Neither was there a record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite;

(ii) there was no note of what transpired with D [a sister] in the police station during the hour that she was out of the interview room;

(iii) the children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning and the short summary note of what each child may have said during the fast track process was wholly inadequate;

(iv) no written record was available at all from the police of the ABE process;

(v) the court had an inadequate account of these matters as the police officer was not called to give evidence;

(vi) the questioning by the officers at significant stages in all three interviews was a clear attempt simply to have the children repeat on camera what they may have said to their foster carer. Leading questions were used and key elements of the narrative, for example the names of the alleged abusers, were introduced by the interviewers.

The judge's analysis of these breaches was inadequate and the decision not to call the officer was wrong.  The inconsistencies of account within the ABE interviews were not adequately addressed.

Children giving evidence
McFarlane LJ quoted extensively from Baroness Hale in Re W and went on to record that those lessons would seem to have gone unheeded in the five or more years since that judgment was given.

The criticisms of the judge were that:

a)  the judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b)  the judge made no reference to the detailed submissions on Re W and did not refer to Re W at all during the hearing;

c)  in the circumstances the judge's consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

McFarlane LJ said this:

"It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights."

The court considering such issues had to engage with the Re W factors, deal with the issue at the earliest possible stage and should have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79.

It was "plainly good practice for the court to be furnished with a written report from the children's guardian and submissions on behalf of the child before deciding whether that child should be called as a witness". But any advice from a Guardian based largely on the harm to the child of giving evidence will be of little assistance.

Child victim/perpetrator/party
In taking instructions from A (a child accused of sexually abusive behaviour) he must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers.  Legal professional privilege applies.  When A met his solicitor and the Guardian and the express purpose was to go through the evidence against him for the purposes of the forthcoming hearing, the question of legal privilege should have been considered.  The judge ordered a statement from the Guardian in relation to that meeting.  McFarlane LJ concluded that

".... is a significant and highly unusual order to make and, irrespective of the position of the parties, the judge ought to have questioned the basis of the proposed order and been aware of the need to protect A's Art 6 rights and his entitlement to legal professional privilege.

"Be that as it may, there must be very grave doubt as to the evidential value of this whole procedure involving a vulnerable young person, with significant learning disability, being asked, according to the guardian's statement to regard YES as 'indicating there had been sexually inappropriate behaviour involving A'."

This judgment is also required reading for any practitioner conducting a finding of fact exercise within the context of sexual abuse allegations.  The reminder of legal professional privilege is important.  The comments on the balance to be struck between ABE breaches, inconsistencies in the primary accounts of abuse, the rights to a fair trial and the general approach of the first instance court are important and will repay study.

Other decisions of note in this quarter include:

• C (A Child) [2016] EWCA Civ 798 in which the decision of the High Court to restrict publication of the King J decision in the Ellie Butler case was overturned.  The original decision had, as an important factor, the risk of prejudice to a re-trial in the event of a successful appeal against conviction by the father.  The Master of the Rolls held:

"The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was 'small'. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise."

The judgment of King J (now published) is a distressing read and contains a litany of abusive behaviour that is striking even to professionals experienced in the area of public law. 

• Re S (Children) (CoA) (21.7.16) (unreported, reference from Lawtel AC9800857)  held that the fact that the judge raised the possibility (for the first time) that the mother was in the pool of perpetrators for the injuries after the evidence and submissions and then went on to so find was a serious irregularity and material unfairness.  Appeal allowed.

• V-Z (Children) [2016] EWCA Civ 475 in which the Court of Appeal again emphasised the need for proper information being furnished to the authorities within the foreign jurisdiction.  The care and placement orders were set aside partly as a result of poor engagement with the Slovak authorities.

11.8.16