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Children Public Law: A Review of the Latest Cases

Alex Verdan of 9 Gough Square summarizes the effect of recent key public law children cases, including Re X which relates to emergency protection order applications.

Alex Verdan, 9 Gough Square

As ever, there have been a number of significant public law children cases in the last few months. The most important in my view is Re X which relates to emergency protection order applications and which gives comprehensive guidance on the appropriate procedure. When read together with Re X v B, Re M and Re H (all referred to below) one can see that the courts are increasingly concerned to ensure that the right decisions based on the best evidence and using the fair and appropriate procedure are made at the all important early hearings in care proceedings. The use of expert evidence in children's cases and the resulting tension between the role of the expert and the role of the judge continues to lead to a large number of reported cases. I have chosen Re B, Re GW and Re R which consider second opinions and the weight to be given to uncontested expert evidence. I have also referred to Re U and Birmingham City Council v H where interestingly in each the court adopted a different approach as to how to treat previous convictions and findings and Re C, a case on the local authority's obligation to consult with parties. This article attempts to summarize the effect of these and other key cases.

Procedure On Application For Emergency Protection Orders
In Re X: Emergency Protection Orders [2006] EWHC 510 (Fam) 16.03.06 McFarlane J gave the following good practice guidance to local authorities applying for emergency protection orders (EPO). This case is, in my view, essential reading for anyone applying for such an order, whether lawyer or social worker. The following key observations were made:

1) the local authority should copy the case of X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341, and make it available to the court on all EPO hearings

2) the lack of information or the need for an assessment can never of itself establish the need for a genuine emergency to justify an EPO

3) evidence should come from the best source, normally the social worker with conduct of the case

4) the most recent case conference minutes should be produced to the court

5) if the application is without notice the applicant should be represented by a lawyer whose duty should include ensuring the court understands the legal criteria

6) the applicant should ensure that a full note of the hearing is taken and given to the child's parents as soon as practicable

7) without notice hearings should be tape recorded or recorded in writing in full by the clerk

8) at the first on notice hearing, the court should ensure the parents have a copy of the clerks note of the EPO hearing, the justices reasons and copies of any evidence submitted

9) cases of emotional abuse rarely warrant an EPO

10) cases of sexual abuse where the allegations are non-specific and where there is no immediate risk of harm to the child rarely warrant an EPO

11) cases of fabricated or induced illness, where there is no medical evidence of immediate risk of harm to the child rarely warrant an EPO

12) justices faced with EPO applications in cases of emotional abuse, sexual abuse or fabricated or induced illness where there is no medical evidence of immediate risk of harm to the child should actively consider refusing the application and transferring to the county court any subsequent care application

13) justices should give detailed reasons on EPO applications, such reasons may be prepared after the decision in urgent cases

14) if an application for an EPO is made without notice, reasons need to be given in the first place for allowing the application to proceed without notice.

The reasoning behind the guidance is clear: the first removal of a child from its parents is not only a draconian step in itself but one with profound consequences particularly where care proceedings can take as long as a year to reach final hearing. The need therefore to ensure that the right decision is made and on the right information is crucial. The underlying principles are clear. Where only one party appears before the Court, the obligation on that party to ensure the Court has the right information, adopts the correct procedure and applies the right test is an onerous one.

Munby J in C v C (Without Notice Orders) [2005] EWHC 2741 (Fam) made comments based on the same underlying principles. He held that in relation to exparte injunctions the obligation on the applicant's legal representatives to respond forthwith to any reasonable request from the party injuncted either for copies of the materials read by the judge or for information about what took place, extended to any person served with or given notice of the injunction.

Interim Hearings: Removal
In Re M (Children) (interim care order) [2005] EWCA Civ 1594; [2006] 1 FCR 303 in care proceedings, the family proceedings court made interim care orders in respect of four children, on a care plan for immediate removal, such orders to last for eight weeks, in the absence of the parents. At the full hearing in the county court, the guardian gave full evidence supplementing the generalised concerns in his report. The parents had had no notice of the points he made in his oral evidence. The parents appealed. The Court of Appeal (LJ Thorpe) firstly held that it was preferable to make a 28 day interim care order where the parents were absent from the Court. On this point it should however be noted that any such order is capable of being discharged and so even if an eight week order is made in the parents absence, there is nothing stopping them applying subsequently to discharge it. The Court of Appeal also held that the lack of notice of the guardian's specific concerns meant that the hearing had fallen short of the standard of fairness required when the removal of children from home was at stake. This point in my view has wider implications because the practice of professional witnesses going beyond their written reports is not uncommon.

This case followed guidance given by Thorpe LJ in his earlier decision Re H (A Child) (Interim Care Order) [2002] EWCA Civ 1932; [2003] 1 FCR 350 which made clear that an interim hearing should not pre-empt the final hearing. Where the local authority propose that a young child is removed from its home and is likely to be kept away for say ten months pending a final hearing such a removal should only be contemplated where the child's safety demands it. One can understand this principle but the wish that an interim 'removal' hearing should not pre-empt the final hearing though laudable, is arguably, unrealistic. The first interim hearing often sets the tone for the remainder of the proceedings, which can take as long as a year and the decision made at that first hearing as to the child's placement is often an accurate indication of the final placement outcome.

Experts
In Re B (A Child) [2006] EWCA Civ 486, 24.03.06, the Court of Appeal ruled that appellant parents in care proceedings had not been disadvantaged by the refusal of permission for them to instruct a further expert witness after fact finding of non accidental injury to give an opinion at the 'outcome' hearing on the issue of risk assessment. Experts had already been instructed in the case to consider the risk to the child if he were to return to the care of his parents. Those experts highlighted as an important issue the fact that the parents continued to deny causing the injury despite the findings made against them. The parents wished to instruct a new expert who purported to start from the basis that although 'denial' was important it was not an issue which ultimately prevented parents in such circumstances from resuming care of their children. The parents' application was refused on the grounds that it was not proportionate to instruct another expert. The Court of Appeal ruled that the experts already instructed touched on the matters which the parents wished the new expert to consider and it was open to them to explore these issues through cross examination. The Court ruled therefore that the parents were not disadvantaged by the absence of a further opinion. It is not clear from the limited reports that currently exist of this case whether the instruction would have led to delay in the outcome hearing, probably a significant one, in which case one can well understand the court's reluctance to allow it. If it would not have, this decision is less understandable as it is extremely difficult in such cases when acting for parents against such evidence though I understand from counsel in the case that the initial viability assessment could have been done in time for the court hearing, although any fuller assessment would have led to an application for an adjournment.

In GW and Another v Oldham MBC and Another [2005] EWCA Civ 1247, the Court of Appeal, warned against the reliance on a single medical expert in complex injury cases. The judge at first instance, in making the care order had relied on the evidence of a single expert in the field on non accidental head injury. An application by the parents to instruct a second expert was refused. After the fact finding permission was granted to release the papers to a second expert whose report expressed an opinion fundamentally opposed to the first by supporting the parents' case of an innocent explanation for the injuries. The Court of Appeal held that the parents were clearly entitled to a second opinion given that the question to be addressed by the expert went to an issue of critical importance for the judge's decision in the case. The Court also commented on the role of the local authority and Guardian in such a case: the former was under a duty to place all relevant information before the court; the latter obliged to take a proactive role in ensuring the case was ready for hearing and the necessary evidence assembled. The Court of Appeal added that consideration should be given to an urgent appeal on such an issue at an interlocutory stage.

In Re R (A Child) [2005] EWCA Civ 1792 the Court of Appeal granted the appeal against the making of a care order and substituted a supervision order. In the court below there had been no dispute that the threshold criteria had been crossed; the issue was the type of order to make. The local authority argued for a care order, all other parties including the Guardian supported by four mental health experts argued for a supervision order. The Court of Appeal held that where the Guardian's opinion was not followed there needed to be a clear explanation, particularly given the weight of expert opinion. The obligation on a judge to explain and justify such a departure was a heavy one.

Significance Of Conviction/Findings
In the recent case of Re U (Care Proceedings: Criminal Conviction: Refusal to give evidence) [2006] EWHC 372 (Fam), the father had been convicted of the murder of a 3 month old child but was appealing against that conviction. The mother had been the key prosecution witness. In care proceedings concerning the two surviving children, the father refused to give evidence, on the advice of criminal counsel. A number of interesting and unusual points arose in this case. The Judge, Holman J, ruled that the father's conviction, though a subsisting one, would be left out of account, given the pending appeal. Not surprisingly, the court held that the family court would not wait for determination of the appeal given the detrimental effect of delay on the two young children. The Judge also held that even though the father was in contempt of court in not giving evidence, there was no effective sanction available to the court given that the father was already in prison serving a life sentence, had little money and could not be further restricted in his participation in the care proceedings without limiting or damaging the court's inquiry into the welfare of the children. Strangely, despite not giving evidence himself, the father was allowed to cross examine the mother. Furthermore, no adverse inference was drawn from his refusal to give evidence as it was based on the advice of his criminal lawyer. The Court decided to use the father's evidence from the criminal trial but where it conflicted with the mother's in the care case, to attach no weight to it.

In contrast to Holman J's treatment of a previous conviction in Re U (above), in Birmingham City Council v H, H and S [2005] EWHC 2885 (Fam), Charles J, on 13.12.05, held that parents had to satisfy a high test to prevent the local authority and the court from relying on earlier findings as to which permission to appeal had been refused. In that case the family court had found the mother responsible for the death of her first child, relying on the evidence, amongst others, of Professor Meadows. In subsequent care proceedings in respect of the mother's third child, the local authority sought to rely on such findings. In this case Charles J also stressed the importance of parties considering closely and defining the issues they maintained the court would have to consider and decide and seeking to ensure that new issues and expert and other evidence were not raised late in the day or at the last moment.

This message was repeated in CL v East Riding Yorkshire Council, MB and BL (A Child) [2006] EWCA Civ 49, where on 7.02.06 the Court of Appeal reminded us that in care proceedings it was necessary and important to define with clarity precisely what the local authority was inviting the court to find, especially at a split hearing. The burden was on the local authority to establish that the child's injuries had been caused non-accidentally. The occurrence of serious accidental injuries was not sufficient to satisfy the threshold criteria. The Court also criticised the local authority for changing the findings it was seeking against the parents with little or no notice, namely after the close of the evidence, thereby preventing a fair trial taking place.

Note that even where no public law orders are contemplated and the parties agree that proceedings should be withdrawn, McFarlane J held in A County Council v DP, RS, BS [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031 that the Court was not a 'neutered stamp' and retained the discretion to conduct a full hearing of the factual evidence. The factors to take into account were: the interests of the child; the time the hearing would take; the costs to public funds; the evidential result; the necessity of the investigation; the relevance of the potential result to the future care plan; the likely impact of the findings on the parties; and the prospects of a fair hearing.

Child Abuse/Negligence
In D v Bury MBC; H v Bury MBC [2006] EWCA Civ 1, the Court of Appeal on 17.01.06, held that child care professionals charged with questions of child protection and the investigation of child abuse had to be free to exercise their professional functions without the burden of an exposure to damages claims in the event that doubts about the injury or sexual abuse proved unfounded. A local authority, investigating the possibility of child abuse, did not owe a duty of care to the parents of the child while the child was subject to an interim care order, or while the investigation continued under the aegis of that order, although it did owe a duty to carry out its reasonable plans of child protection in a professional way.

Consultation With Parties
In Re C (Care: Consultation with Parent not in Child's Best Interests), unreported, Coleridge J on 20.1.05 granted a declaration to the effect that the local authority was absolved, in what were exceptional circumstances, from any obligation to consult that father. The facts were that the father had raped the child and serving a long prison term. The child who was subject to a care order, did not wish the father to be informed or consulted at all in relation to her future and had applied successfully for discharge of his parental responsibility. The local authority meanwhile remained obliged to consult and inform parents of their plans for the child and so sought a declaration from the court.

On the subject of informing members of a family about proceedings, reference can also be made to Z County Council v R [2001] 1 FLR 365 where Holman J then held that there was no provision of English or Convention law that obliged a local authority to inform members of the extended family of the fact of freeing proceedings. This case however turns on its facts and does not establish a wider principle.

Although of course there was an obligation on local authorities to share relevant information relating to children in their care with parents of those children in Brent LBC v N (Foster carers) and P (By her Guardian) [2006] 1 FLR 310 the Court held that the local authority in this particular case were not obliged to inform the child's parents that the foster carer with whom the child was living was HIV positive. The risk to the child was negligible, this information was not relevant to the issues in the case and the foster carer had a right to privacy.

Contact To Children In Care
The issue of the quantum of contact to young children or babies when first removed into care is always controversial. The case of Kirklees MBC v S (Contact to New Born Babies) [2006] 1 FLR 333, held that an order for daily contact to a child in foster care where supervision by the local authority was required was exceptionally unusual. There was no principle that a very young baby should have daily contact with their mother from whom they had been removed. It was not possible to ignore resource implications. Each case obviously had to be looked at on its own merits.