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Children Public Law: A Review of the Latest Cases (Summer 2006)

Ceri White of 9 Gough Square summarizes the effect of recent key public law children cases, including Re P-B, Re V and Re S.

Ceri White, 9 Gough Square

A number of cases dealing with important, but disparate, topics have recently been reported. Re P-B finally answers the vexed question of the correct timing for placement order applications, the implications of which may well be far reaching for attempts to minimise delay in public law cases. Re V is a further attempt to set guidelines in respect of payment for assessments ordered under s38(6). The issue of the appropriate time to seek a second opinion in NAI cases is canvassed in Re S. Finally, I shall look briefly at (1) LB Haringey (2) LB Hackney v Mrs S & 7 ors which, somewhat unusually, is reported because of the intense public interest in the linked criminal proceedings (the allegations being ones of ritual harm associated with witchcraft): Mr Justice Ryder declaring 'that the public should know what became of those involved'.

Applications for placement orders
I do not believe I am alone in thinking the Adoption and Children Act 2002 one of the worst written pieces of legislation ever seen. Laudable aims: monstrous drafting. Many a time I have been befuddled and bemused as I try to reconcile two different sections which, on first reading, mean the precise opposite of each other. I am confident, however, that one of the main aims of the Act is the minimising of delay for children being placed for adoption. The recent judgment of P-B (A Child) [2006] EWCA Civ 1016, which deals with the appropriate time for a local authority to make an application for a placement order, reveals that, conversely, the Act could create yet more delay for vulnerable children waiting for permanent families.

In Re P-B a placement order was made at the final care hearing in Watford County Court. The application for that placement order came on the third day of that final hearing, the local authority having indicated at the pre-trial review that their adoption panel was meeting on the first day of the final hearing and, should the panel approve adoption, an immediate placement application would be issued. At the conclusion of the final hearing, the judge made both a care order and placement order. The crux of the parents' case was that the application was procedurally unfair in that there was no opportunity for reflection or to advance a considered case.

In response, the local authority argued that until the adoption panel recommends adoption and that decision is considered and endorsed by the appointed officer of the local authority acting as an adoption agency, no placement order application can be issued.

In most cases, it is the aim of the court and parties to hear placement order applications at the time of the final care hearing. It saves court time and costs and, most importantly, it ensures that vital decisions concerning a child's future are made swiftly, with a minimum of delay. The same timetable was also regarded as ideal when freeing orders were made.

Most courts currently expect early applications for placement orders, allowing the court timetable to progress on the assumption that the matter will be heard at final hearing despite the evidence not being complete at the time of the application and the matter having not yet been to panel. Some courts now arbitrarily impose deadlines by which any placement application must be in: Inner London Family Proceedings Court, pointing to the pressure of issuing these applications, requires any placement application to be in no later than six weeks before final hearing.

Re P-B indicates that in interpreting s22 of the Act (a local authority is to make an application if they are satisfied that the child ought to be placed for adoption), the local authority is not acting under the auspices of Parts 3 and 4 of the Children Act but as an adoption agency under the Adoption and Children Act. The local authority can only be satisfied that a child ought to be placed for adoption, therefore, when the appointed officer approves the panel's decision. It is only at that point, says Re P-B, that an application can be issued.

The obvious practical difficulty with this decision is that children in care proceedings often go late to panel – all other options must be ruled out and the evidence, often in the form of expert reports, be available for the panel to peruse. The situation that arose in Re P-B of last minute applications will naturally occur more often as 'pre-emptive' placement applications are ruled out. Either courts such as Inner London will have to relax their policies on the issuing of these applications or we will see greater delay as placement orders are dealt with separately, and subsequent to, care proceedings. Let us hope it is the former.

Instalment 484: Section 38(6) funding
The case of Re V(a child) sub nom Sheffield City Council v (Respondent) & Legal Services Commission (Intervenor) [2006] EWHC 1861 (Fam) is the latest in a long line of cases addressing the funding of assessments ordered under s38(6) of the Children Act 1989. At first instance a s38(6) residential assessment was ordered by the court. Only subsequently was the funding for that assessment addressed and – in the absence of a breakdown of work from the unit - the local authority ordered to fund the whole assessment, the court accepting the publicly funded parties' arguments that they could not be required to contribute because the assessment amounted to therapy, treatment and/or training.

It is undoubtedly the case that funding any assessment of the kind categorised above would be ultra vires for the Legal Services Commission. The LSC goes further in its December 2005 newsletter (Focus 49), stating that where there is no breakdown of work, the LSC would conclude that it was all treatment, therapy or training and therefore ultra vires. It was this LSC guidance that was relied upon by the publicly funded parties in making their submissions and was accepted by the justices in giving their reasons.

Mr Justice Bodey not only rejects the idea that this particular residential assessment was one of therapy, treatment or training but goes on to say that had there been a large element of that – and no breakdown of work – the court could have declined to make an order in respect of the percentage it assumed to be treatment, therapy or training, whilst apportioning the cost of the remainder (ie the assessment of the child).

The Judge pointed to the case of Kent County Council v G & ors [2005] UKHL 68 as authority for the proposition that no party can be ordered to pay the costs of an assessment that is one of treatment, therapy or training and therefore falls outwith s38(6).

The Judge went on to give guidance in order that this situation does not again arise:

a) s38(6) directions should not be made until the court has had the opportunity to examine the assessment in appropriate, though not excessive detail

b) the proposed assessment-provider should be informed prior to the direction as to what is required, ie what can form an assessment of the child under s38(6), and it should be specifically pointed out that any treatment, therapy or training cannot be ordered by the court, so must be separately negotiated

c) the proposed assessment-provider needs to supply clear information as to the nature of work to be undertaken as well as a costs schedule that shows the amount per week and the number of weeks that are likely

d) if any training, treatment or therapy is proposed (either separately or within the wider assessment) then the hourly rate and likely number of hours need to be separately provided

e) using all the information above, the parties should attempt to agree the apportionment of costs of the assessment (bearing in mind recent judicial authority and any party's responsibility to the LSC)

f) in any contested funding issue, the court should look at the information provided pursuant to (c) and (d) above and apply the guidelines in Lambeth LBC v S,C,V & J: LSC intervening [2005] 2 FLR 1171, Calderdale MBC v S & the LSC [2005] 1 FLR 751 and Re G above. If the case is a grey area, the court must form a common sense view as to the real nature of the assessment and the proportion of work which falls properly within the ambit of s38(6)

g) if the assessment is genuinely of a mixed nature, the court should identify the proportion which falls outside s38(6) so it can order the remainder and apportion costs

h) the issue of funding should be dealt with at the same hearing as the s38(6) application itself. Where this is not possible, the assessment-provider needs to be reminded that the court cannot order any aspects of treatment, therapy or training nor order anyone to pay for that

i) any party alleging that a residential assessment contains elements of therapy, treatment or training should be able to establish this to the court. Otherwise, there is a very strong probability that the costs will be apportioned between the parties

Mr Justice Bodey cautioned parents' legal representatives to be alive to the need to apply swiftly to CAMHS or other providers for treatment, training or therapy that falls outwith s38(6).

It is hoped that these sensible guidelines from the court should lead to a reduction in s38(6) cases contested purely in relation to funding. The LSC quite rightly attempts to keep its costs down but in ordering representatives of publicly funded parties to oppose reasonable and proper apportionment of the costs of an assessment, it leads to increased costs of legal fees and significant time. I cannot be the only lawyer to feel embarrassed when I refuse, on behalf of the LSC, to contribute to the costs of an assessment I pushed so hard for the benefit of my client.

NAI: when is a second opinion actually a first opinion?
In Re S(Children) [2006] EWCA Civ 981 the father appealed against a refusal to allow the appointment of four additional expert witnesses in a case of significant non-accidental injury. He also appealed against an order that he file a report from his treating psychiatrist. The local authority cross-appealed, arguing that the father should file his medical records (held by father himself).

The father's appeal was upheld in respect of the report from his psychiatrist, the court reaffirming that it cannot compel a party against his will to procure the evidence of someone not yet a witness to the proceedings. The court noted, however, that the father could be compelled to file evidence from himself and promptly granted the local authority's cross-appeal.

In respect of his application for four further witnesses, the father relied upon the case of W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543 where Wall LJ indicated that a parent should have been allowed to get a second opinion from a paediatric neurologist because the evidence of the first paediatric neurologist, and his interpretation of the MRI scan, was so pivotal.

In this case, Wilson LJ dismissed this aspect of the father's appeal as, effectively, being premature. There was, as yet, no first opinion with which the father did not agree. Without the reports of the experts already instructed, it would be impossible to tell which of them was pivotal and which further experts might therefore be needed.

The court dealt with the objection that not to order reports now would be to invite delay later:

"The tail, however, would be wagging the dog were the court, in this case or routinely, to favour what would otherwise be the premature collection of expert evidence in order not to jeopardise a hearing in the event that it were later to prove appropriate for it to be collected."

The public's right to know
The case of (1) LB Haringey (2) LB Hackney v Mrs S & 7 ors [2006] EWHC 2001 (Fam) is an interesting one. It deals with the care proceedings in respect of four children, one of whom was subject to ritual harm associated with ndoki or kindoki (witchcraft). The reason for its reporting comes about through the purported public interest in the case, the linked criminal proceedings having received a great deal of coverage. The case itself addresses no new point of law or novel facts.

Mr Justice Ryder indicated that because of 'understandable public concern'…'the public should know what became of those involved'. In the current climate of increasing openness in the family courts, this reasoning sits well. However, it is not so long ago that the family courts would think those who did not know the children involved had no right to know what became of them.

Of course, there could be another reason for the reporting of this judgment: one of the children has been placed with his father and step-mother since September 2004. The child has indefinite leave to remain but both adults have now exhausted all avenues of appeal and are due to be deported to Angola and DR Congo imminently. The Home Office have made it clear that the child should accompany his father to Angola (despite expert evidence suggesting he will, at some point, almost certainly be accused of witchcraft in Angola because of his association with this case) and indicate that if the child does not wish to live in Angola he can live apart from his father: 'who has played almost no part in the child's upbringing'. The Home Office clearly has no interest in the trauma inherent for a mistreated child in another change of carer. Perhaps through the reporting of this case, the court is trying to persuade the Home Office to take a more compassionate stance. Whether that was the court's intention or not, let us hope the publicity does invoke a Home Office change of heart.