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Children: Public Law Update (January 2018)

John Tughan QC of 4 Paper Buildings reviews recent important Children Public Law cases.

John Tughan QC of 4 Paper Buildings















John Tughan QC, 4 Paper Buildings 

In this public law update I will touch upon recent decisions containing the following issues:


Costs issues within Human Rights Act claims

In PM, MT, SW & TW [2017] EWHC 3028 (Fam) Mr Justice Cobb was finalising the Human Rights Act claims that he had dealt with in SW and TW (Human Rights Claim: Procedure) [2017] EWHC 450.  The settlement of the claims for damages was approved and the investment hearing adjourned to a Master.  However, a new issue arose. Namely, whether the claimants' costs of pursuing the Human Rights Act 1998 claim have been increased by the conduct of the Legal Aid Agency in failing to state whether the statutory charge relating to the costs of the care proceedings will apply to the recovery of their damages and, following on from that determination, whether those additional or increased costs should indeed be paid by the Legal Aid Agency. 

In deciding the issue, Cobb J applied the provisions of s.51 of the Senior Courts Act 1981 which gives a wide discretion as well as Part 44 and Part 46(2) of the Civil Procedure Rules 1998.  The test for the Court was set out in this way:

"Specifically in Part 46(2) and the power of the court to make orders for costs against third parties, I have had regard further to the decision of Globe Equities v Globe Legal Services Ltd [1999] EWCA Civ 3023, in which Lord Justice Morritt said at para.21 as follows:

'It will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order the some non-party to pay the costs.  Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advanced by reference to any further characteristic.'"

That is a case to which I myself had cause to make reference in a case called Re OB (Private Law Proceedings: Costs) [2016] 1 FLR 92 and specifically to draw attention to the fact that Globe Equities was authority for the proposition that it was not necessary to demonstrate exceptionality; simply the administration of a just outcome.

On the facts of the case, the Legal Aid Agency did not make any decision, did not seek timely disclosure of information offered by the parties and did not act reasonably the court ordered the Legal Aid Agency to pay the additional or increased costs.


Power of the court to grant a non-molestation order to protect a child who is the subject of a full care order

Re T (A Child) [2017] EWCA Civ 1889 concerned the power of a family court to grant a non-molestation injunction (under the Family Law Act 1996) to protect a child who is the subject of a full care order.  The child was placed in care with a plan of long term fostering.  The parents resisted and refused to accept the decision and "embarked upon serious attempts to abduct the child from her carers".  Several moves of foster home were required as a result.  The Father had convictions for serious violence.  The aim of the application for a non molestation order was to achieve a power of arrest. 

The Court of Appeal approved the authority of Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 583, which established that there was no power within proceedings under the inherent jurisdiction for the court to attach a power or arrest.

McFarlane LJ gave the lead judgment and set out the discussion both as to jurisdiction and the term "molestation".  The Court held:

"(i) There is no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s.42(2)(b).  The court was seized of validly constituted 'family proceedings' (s.63(1)), namely the local authority application under the inherent jurisdiction.  I do not share the judge's reluctance in relying upon the existence of those proceedings as a jurisdictional platform for considering granting a non-molestation order under s.42(2)(b)... Once it was accepted that any order under the inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for the local authority to ask the court to consider granting a non-molestation order under the 1996 Act by utilising the jurisdiction provided by s.42(2)(b) which is designed precisely for the purpose of supplementing the court's jurisdiction in other 'family proceedings' in this way.

(ii) When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the 'harassment' or 'alarm and distress' caused to those on the receiving end... The judge's conclusion, that, because the actions complained of had not actually been seen by the child, this did not constitute molestation sufficient to justify an order under the 1996 Act seems to have been based upon the absence of any direct, one-to-one, harassment of the child by the mother or Mr JM... I am clear that his conclusion was made in error. There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order."


Power to revoke an adoption order for mistake

Re J (A Minor) (Revocation of Adoption Order) [2017] EWHC 2704 (Fam) involved the original judge hearing an application by a natural mother for permission to oppose the adoption application.  The judge correctly dismissed the application but went on to make an adoption order.  Hayden J found that the judge had become confused as to what application she was hearing.  There was then an attempt to revoke the order.  Before the mistaken order was sealed the designated judge alerted Hayden J to the issue and the court dealt with the issue administratively.  There were two "equally legitimate" alternatives to the court, a referral to the Court of Appeal or to address it within the High Court.  On the unique facts of the case the inherent jurisdiction was invoked and the erroneous order revoked.


Guidelines relating to children meeting the judge

MacDonald J was faced with the issue of a judge meeting the subject children in Brent v D and Others  [2017] EWHC 2452 (Fam). It was a case that involved a very large measure of agreement between the parties as to the appropriate care plan for the children.   The case concerned  children aged 14, 15, and 16 respectively and MacDonald J reminded himself of the principles relating to wishes and feelings:

".... the wishes and feelings of a mature child do not carry any presumption of precedence over any other factors in the welfare checklist (see Re PJ [2014] EWHC 1780 (Fam), [2014] 2 FLR 27).  The child's preference is only one factor in the case and the court is not bound to follow it.  The weight to be attached to the child's wishes and feelings will depend on the particular circumstances of each case......In particular, having regard to the words of Section 1(3)(a), it is important in every case that the question of the weight to be given to the child's wishes and feelings is evaluated by reference to the child's age and understanding.  Within this context and on the face of it, the older the child the more influential will be his or her views in the decision-making process.  However, in the end the decision is that of the court and not of the child (see Re P (Minors) (Wardship: Care and Control) [1992] 2 FCR 681)."

The court was critical of the delay of a month between the communication to the Guardian of the child's wish to meet the judge and the onward transmission of that request to the court.  The onward transmission was couched in terms that assumed the request would be granted.  No steps pursuant to the Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872 had been taken and the child was brought to court.

The guidance was considered by Moore-Bick LJ in the case of Re KP (A Child) [2014] EWCA Civ 554, [2014] 1 WLR 4326 and the guidelines and that past decision were emphasised by MacDonald J:

"The 2010 Guidelines exist to ensure that when a judge meets a child, the purpose of that meeting and the expectation of all who are party to it are clear both to the child and to the parties to the proceedings.  The need for the purpose of the meeting, and the expectations of those who are party to that meeting to be clear is emphasised by the clear injunction in the Guidelines against using the meeting to obtain evidence and in favour of using the meeting to ensure that the child feels more involved and connected with the proceedings." 

The expectation of the court was made clear, that any request for such a meeting should be raised by the IRH.


Hair strand testing, the science and the law

In the London Borough of Barnet v T, G and H [2017] EWFC 64 Peter Jackson J was dealing with disputed issues relating to issues of hair-strand testing for cocaine.  Testing for cocaine is made more complex by the fact that there is no metabolite available that is not also available naturally.  Therefore, the distinction between consumption and contamination requires more effort on the part of the testing agencies as compared to, for example, cannabis which does have a metabolite that is only produced by the body's metabolism following consumption.

The court recognised that the issue of hair strand testing had been considered in previous cases, namely In Re F (Children) (DNA Evidence) [2007] EWHC 3235 (Mr Hayden QC), London Borough of Richmond v B [2010] EWHC 2903 (Fam) (Moylan J), Bristol City Council v The Mother and others [2012] EWHC 2548 (Fam) (Baker J) and London Borough of Islington v M & R [2017] EWHC 364 (Fam).

Peter Jackson J cited the above cases with approval and extracted principles from them, including (centrally) this:

"It is particularly important to emphasise that each of the three experts in this case confirmed that hair strand testing should never be regarded as determinative or conclusive. They agree, as do I, that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor's reliability in her account etc. These are all ultimately matters for the Judge to evaluate."

The court was faced with evidence from Dr Rushton, in particular, that called into question the validity of hair strand testing.  Having set out the propositions agreed between the experts as well as some of the data from the three involved hair strand testing companies, the court found:

"In my view, the variability of findings from hair strand testing does not call into question the underlying science, but underlines the need to treat numerical data with proper caution.  The extraction of chemicals from a solid matrix such as human hair is inevitably accompanied by margins of variability.  No doubt our understanding will increase with developments in science but, as matters stand, the evidence in this case satisfies me that these testing organisations approach their task conscientiously.  Also, as previous decisions remind us, a test result is only part of the evidence.  A very high result may amount to compelling evidence, but in the lower range numerical information must be set alongside evidence of other kinds.  Once this is appreciated, the significance of variability between one low figure and another falls into perspective.  I therefore accept the approach of the testing experts and of Dr McKinnon in preference to that of Dr Rushton on this issue.  His approach requires an exactitude that can never be achieved in practice in the present day...

I must say something about the reporting of test results as being within the high/medium/low range.  In fairness to the testing organisations, this practice has developed at the request of clients wishing to understand the results more easily.  The danger is that the report is too easily taken to be conclusive proof of high/medium/low use, when in fact the actual level of use may be lower or higher than the description.  You cannot read back from the result to the suspected use.  Two people can consume the same amount of cocaine and give quite different test results.  Two people can give the same test result and have consumed quite different amounts of cocaine.  This is the consequence of physiology: there are variables in relation to hair colour, race, hair condition (bleaching and straightening damages hair), pregnancy and body size.  Then there are the variables inherent in the testing process.  Dr McKinnon explained that there is therefore only a broad correlation between the test results and the conclusions that can be drawn about likely use and that it should be recognised that in some cases (of which this is in his opinion, one) there will be scope for reasonable disagreement between experts."


Duty of the court to give reasons

Re N-S (Children) [2017] EWCA Civ 1121 raised two questions for the Court of Appeal.  The first was what is the extent of a judge's responsibility to provide reasons in support of orders made at the conclusion of public law children proceedings?  The second was where there has been a failure to give reasons, but there can be no challenge on appeal to the substantive orders made, what steps, if any, should the appellate court take to redress the lack of adequate reasoning?

Permission to appeal had been granted on the sole ground of an absence of reasons being given for approving care plans for adoption.  McFarlane LJ rehearsed the authorities requiring that reasons are given including English v Emery Reimbold & Stirick Ltd [2002] EWCA Civ 605, Re T (Contact: Alienation: Permission to appeal) [2002] EWCA Civ 1736 and  Re M (Children) [2008] EWCA Civ 1261.

The lesson to be learned was that there was a duty on the parties to identify the live issues that were required to be determined at any hearing with the judge usefully cross-checking against that list during delivery of the decision.


Duty of the advocate

Finally a reminder to all advocates.  The case of A Local Authority v B (Children) [2017] EWCA Civ 1635 involved McFarlane LJ agreeing with the Appellant's submission that the first instance Judge had been "unnecessarily adversarial" with Counsel during cross-examination.  McFarlane LJ reminded advocates of the following:

"Whilst I understand the submission that is made which is that in the outcome the process may have failed to hear what might have been said on behalf of the child during the course of this particular hearing, if criticism is to be made it should not all focus upon the judge. Sometimes hearings in cases, no matter what area of the jurisdiction that we may be concerned with, are difficult. Advocates encounter judges who they perceive are not 'with them' and may be stoically against them. Part of the role of the advocate is to stand up for their case and make sure, even if the judge is against them, that their case is put properly before the court and is there to be taken in to consideration by the judge."

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