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Children: Public Law Update (July 2008)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest key decisions in public children law including the Lords decision in B (Children) concerning standards of proof in fact finding hearings

Picture of Alex Verdan

Alex Verdan QC, 4 Paper Buildings

In this Review I will focus on recent cases covering the following topics:

Standard of Proof
The most important decision this quarter has been that of the House of Lords in Re B [2008] UKHL 35 - which arose from a decision of Charles J which challenged Re H and R’s  (Re H (Minors)(Sexual abuse: standard of proof) [1996] AC 563) exposition of the standard of proof to be applied in family proceedings. This case decides once and for all, in my view, that: i) the standard of proof to be applied is the simple balance of probabilities i.e. whether a fact is more likely than not; and ii) a real possibility that a fact had occurred is insufficient proof. Both Lord Hoffman and Baroness Hale made clear there is only one standard of proof and that is proof that the fact in issue more probably occurred than not.

The case concerned a girl aged 9 and allegations of sexual abuse by her 16 year old half sister against the father. Charles J was unable to find that the father had sexually abused the half sister but found that, as he was unable to conclude there was no real possibility he had abused her, he had to conclude that there was a real possibility he had.

Baroness Hale in a forthright passage disagreed with this analysis. She said judges have to find for one side or the other. She made clear that the threshold is there to protect both the children and their parents from unjustified intervention in their lives and it would provide no protection if it could be established on the basis of unsubstantiated suspicions.
She also stressed the importance of keeping separate the roles of the court and the local authorities. In making its enquiries and carrying out its assessments a local authority will clearly range far wider than the threshold criteria and will take into account reasonable beliefs and suspicions; whilst the court when authorizing permanent intervention in the legal relationship between parent and child is tasked to decide whether those suspicions are well founded.

The new lexicon therefore is as follows; in comes the binary system: if a fact happened it’s a 1; if it didn’t it’s a 0. There is no room for a finding that it might have happened. Out goes cogency and the well worn out mantra: “the more serious the allegation the less likely it is to have occurred and the stronger and more cogent should be the evidence before the court concludes that the allegation is established.”  Lord Hoffman makes clear this often quoted formula of Lord Nicholls is not a rule of law but rather an application of common sense to whatever extent is appropriate in the particular case.  It would be absurd, he continues to suggest, that the tribunal must in all cases assume serious conduct is unlikely to have occurred. So if, for example, it is clear that a child was sexually assaulted it would make no sense to start ones reasoning by saying sexually assaulting children is a serious matter and therefore neither of the carers is likely to have done it. Baroness Hale goes further by announcing “loud and clear” that the standard of proof in care cases is the simple balance of probabilities, “neither more nor less.” Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied to determining the facts. So whilst it may be unlikely that a parent would hold a baby by the wrist and swing him against a wall causing multiple fractures, once the evidence establishes that to have occurred, it ceases to be improbable. The inherent improbability of the event has no relevance to deciding who that was. Someone looking after the child at the relevant time must have done it. In other words, proof of likelihood depends on facts and circumstances of particular case.

The House of Lords also had two things to say about split hearings. Firstly, the purpose of splitting the hearing is not to split threshold from outcome but to separate factual issues capable of swift resolution so that professionals have a firm factual foundation on which to base their assessments. Therefore, there is no point splitting the hearing if the facts cannot be determined relatively quickly and if it is unlikely to result in clear cut findings to help the professionals in their work. Secondly, a fact finding exercise is not a separate exercise and once it is done the case is part heard and should not resume in front of a different judge. Baroness Hale was critical of Charles J’s decision to recuse himself from the second part of the hearing (on the basis that parties might perceive that he would find it difficult to put out of his mind the real possibility that events had occurred) stating a judge could not make decisions based on the evidence when he had only heard half of it. 

Lastly, the House of Lords endorsed the use of the following simple formula to be used in letters of instruction to experts involved in such cases: “The Court has considered the allegations of harm made against X and has concluded that it is not satisfied that they are more likely to be true than not. In those circumstances the fact that those allegations were made remains part of the factual matrix of the family history and the ramifications of their having been made may well be relevant to your assessment.  However, given that the court was not satisfied that the allegations were true, they cannot form the basis for asserting that there is a current risk of the same type of harm occurring in the future.”

Interim hearings
In L (A Child) [2007] EWHC 3404 (Fam) the key issue in the case was whether the child should be removed from the mother prior to a final hearing as there was a risk of harm, which was not disputed, from the mother's partner. Her case was that she needed support to help her separate from him. Any decision on that matter had become complicated by procedural errors in the management of the case in that it became clear that the hearing for the interim care order would actually become determinative of all the issues in the case.

An earlier hearing in front of Ryder J had resulted in a report suggesting that the mother should be allowed a second residential assessment, away from the father, to demonstrate her ability to cope with the child. There had already been one assessment, which demonstrated that the mother could provide practical care for the child, but had not dealt with the issue of whether the mother's relationship with the father would continue. However the local authority argued that the mother's alleged covert, continuing relationship with the father and her inability to change warranted the removal of the child under the interim care order.
In this judgment, Ryder J reviewed the evidence for removal put forward by the authority and the guardian. He concluded that the authority and guardian had erred in i) believing that mere passing of the threshold criteria was sufficient for the Court to order the removal of the child; ii) failing to acknowledge the need to consider whether there was an imminent risk of really serious harm i.e. whether the risk to the child’s safety demanded immediate separation; and iii) attempting to litigate the issue at an interim hearing which effectively would pre judge the full and profound trial. He also made the point that while "ultimately" the local authority and the guardian may be right "that was a matter for the final hearing or issues resolution hearing when all of the evidence would be available to the Court". He therefore directed that a further residential assessment be carried out and that renewal of any interim care order would be heard by him.

Re K [2008] EWHC 540 (Fam) is of interest because it is the next episode of Munby J’s Nottingham City Council case, which received much publicity previously - R (G) v Nottingham City Council (No 2) [2008] EWHC 400 (Admin) - when he held that the local authority’s removal of the baby from the hospital ward without court order was unlawful and then made orders that the mother should undergo a residential assessment at the Cassell Hospital. In the event, the local authority reported fights with the father of the child in view of hospital staff and during contact. The mother also left the Cassell unit and informed them that she would not return. The local authority therefore applied for the order requiring assessment to be discharged and contact between mother and child to cease, as the child was at risk. In allowing the local authority's application, Munby J found that the residential assessment order should be discharged because of the mother's attitude and because the Cassell were no longer prepared to accept her. On the issue of contact, he did grant an order under s34(4) of the Children Act, even though he set the bar very high for granting such an order. He said that it was a very drastic thing indeed to interfere with a young mother's contact with her newborn baby, and her contact with her, particularly at a time when 'threshold' is yet to be established and that it was an even more drastic thing to deny contact altogether, and something which lies at the very extremities of the court's powers. “Extraordinarily compelling reasons” must be shown to justify an order under section 34(4) at this early stage in the proceedings. It was this reasoning and him not wanting to send the wrong message to all concerned that led him to refuse the local authority's request that the order should endure until the final hearing; instead he made an order that would expire on the date of the case management conference, following transfer back to the county court. He also pointed out that such an order "only authorises the local authority to refuse to allow contact. It does not forbid such contact and a local authority, even if clothed with authority under section 34(4) is, of course, under a continuing duty to keep matters under review and to allow contact to resume as soon as it is safe and appropriate to do so."

Sexual abuse
S (A Child) [2008] EWCA Civ 365 should be read alongside Re B above in that it provides further guidance on what material experts should be given and how to draft their letter of instruction. The case concerned an appeal against a case management decision in public law proceedings that had the effect of allowing unproven allegations of sexual misconduct to be presented to an expert in the trial bundle. Thorpe LJ, in allowing the appeal, agreed that as the allegations had not been tested in the courts and the local authority were not relying on them, then notes of such allegations in the files should be removed from the bundle sent to the expert and made the following additional points: i) while instructing experts nothing relevant should be left out but equally irrelevant material should be "rigorously excluded" and ii) "it is important that local authorities should abstain from introducing into proceedings, and sending to experts, material which will inevitably be perceived -- perhaps reasonably perceived by the adult who is being assessed -- as being unfair". He explained that as allegations, that have not been pursued or proved by the local authority at the fact finding stage of proceedings, are not to be considered by the court in assessing risks and in considering what public law orders should be made, then logically that material should not be considered by the jointly instructed expert; logically, because, most evidently, it would be irrelevant for the expert to consider and opine upon something irrelevant to the judge's task at disposal. Hughes LJ provided some pointers on how the letter to the expert should be drafted by telling the expert that i) what he is getting is all the ‘relevant’ documents in the case; and ii) the assessment of the parents must not be on the basis that the allegations are, or may be, true, nor on the basis that father presents any form of sexual risk to children.

In Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] EWHC 802 (Fam) the proceedings were set in motion after the parents took the child to hospital after they had discovered blood while washing her underwear. An examination followed and, at the parents' request, further consultations were arranged as the possibility of sexual abuse had been raised. Other examinations followed, including colposcopy, which eventually led to the removal of the children to the maternal grandparents following second opinion from another paediatrician. In the hearings that followed, there were a series of medical reports and a finding that the second opinion was not sufficiently independent because of the close work related relationship of the second and first experts. This led to a third examination from another expert. Finally, the parents successfully applied to get further expert opinion from Professor Heger from the US and her evidence led to further expert opinion from dermatologists. Holman J reviewed the evidence of all the experts involved. That also involved consideration of the unpublished (at the time of the hearing) guidance contained in "The physical signs of child sexual abuse, an evidence based review and guidance for best practice" produced by the Royal College of Paediatrics and Child Health, which document is more conservative and cautious than its predecessor as to the reliability of physical signs as evidence of abuse. These new guidelines had the result of making two of the experts more cautious about their diagnosis of sexual abuse from the physical signs presented, although throughout Professor Heger stated that the physical signs were entirely normal and not indicative of abuse. It was her evidence that led to the instruction of the dermatologists who postulated that the bleeding could be caused by eczema from which the child suffered. Holman J aired concerns about the reliance on purely physical evidence saying: "The medical assessment of physical signs of sexual abuse has a considerably subjective element, and unless there is clearly diagnostic evidence of abuse (e.g. the presence of semen or a foreign body internally) purely medical assessments and opinions should not be allowed to predominate." The learned judge was not satisfied that it is more probable than not that the child has been sexually abused and went further to find that she had not been sexually interfered with or abused at all.

Residential assessments
In A Local Authority v M (Funding of Residential Assessments) [2008] EWHC 162 (Fam) all the professionals in the case supported a residential assessment but the key question was how this should be funded. The local authority opposed sole funding so the LSC was served with notice of the application, with leave to intervene. They responded that, given the Funding Code under Sections 8 and 9 of the Access to Justice Act 1999, the court no longer had power to direct that the costs of a residential assessment be shared such that the Legal Services Commission had to pay for any part. This stance was not challenged by any of the parties but the local authority still stated it could not afford to pay for the assessment. In the light of this, Bodey J contacted the residential assessment centre asking if they could reduce the cost of the full 12 week assessment, which was set at £50,000. They agreed to a cut down 7 week assessment at £25,000. He then weighed up the competing interests and decided that while the court "must obviously pay careful regard to these budgeting matters" the LA agreed that the assessment was the best way forward. They should therefore fund the initial 7 week assessment, and he would review the progress at that point. If there was encouraging progress, the local authority would also be liable for the costs of the full assessment. He concluded with some thoughts on the whole issue of assessment funding: "This case demonstrates an urgent need for further consideration of the funding of necessary residential assessments. Some arrangements need to be put in place to avoid the need for routine hearings like this on a case-by-case basis, hearings which are costly and which divert judicial resources. It is unsatisfactory if not invidious that courts charged with taking serious and sensitive decisions about children, where an under-informed decision could on occasion spell disaster, should have to choose between (a) overburdening an already over-stretched local authority or (b) denying a residential assessment to a parent for whom it represents the only hope of avoiding the loss of his or her child to adoption."
Placement orders

F (A Child) [2008] EWCA Civ 439 concerned an application for leave to apply for a revocation of a placement order by the biological father of the child in question. The child had been born out a brief sexual relationship with the mother and the father was not initially aware of the child's birth. He became involved in care proceedings when he was asked to give DNA samples to prove parentage but declined to be further involved until the point where he found that the child was being placed for adoption. At that stage he instructed solicitors who first called the adoption agency and then faxed the local authority indicating that he was to pursue an application for leave to apply for revocation under s 24 of the Adoption and Children Act 2002. A hearing was fixed for 30 January 2008 but before that hearing took place, and with no communication from the local authority, the child was placed with prospective adoptive parents the day before. The judge at first instance affirmed that s 24(5) of the 2002 Act, that states that children will not be placed with prospective adoptive parents, only applies while there is an application for revocation of a placement order in process, not merely an application for leave to apply. In the Court of Appeal counsel for the father argued that the statute could be interpreted to read that it included applications for leave to apply and that the section was incompatible with the Human Rights Act. Wall LJ dismissed the appeal stating that Parliament had clearly intended to make the distinction in the wording of the statute as the words of the section were clear and unambiguous and capable of only one meaning. However he reserved strong criticism for the "disgraceful conduct" of the local authority adoption agency in forging ahead with the placement in the knowledge that there was an application being made by the father, saying that the behaviour of the agency in the instant case was about the worst he had ever encountered in a career spanning nearly 40 years. He also saw no reason why a judicial review could legitimately result in a finding that the placement was unlawful. He also set out what he thought should have happened if good practice had been followed. The first duty on the council was to respond promptly and openly to the entirely legitimate requests for information; the failure to respond so was a particularly serious breach of the council's duty.  A balanced promotion of welfare required at the least an investigation of what the appellant had to offer and whether adoption remained the better choice. To deny the appellant was also to deny the child the chance. Not only did the council owe a duty to the appellant and to the child but also to the prospective adopters. Once the appellant put himself forward and sought the revocation of the placement order, to press forward on the road to placement without warning the prospective adopters that their legitimate expectations might never be realised, was an abuse of their trust. Thereafter, the council's plain duty, particularly having ignored the legitimate requests for information, was to defer the placement or at least to agree to give notice, say of 14 days, to the applicant of any proposed placement.

In P v Nottingham City Council & the Official Solicitor [2008] EWCA Civ 462 the appellant was the mother of a prematurely born child who had serious medical problems requiring skilled care. The child was placed with foster parents at birth where she has remained during the care proceedings. During the proceedings the mother was represented by the Official Solicitor as she was assessed not to have capacity to consent to a placement order. The Official Solicitor did not oppose the orders. The case is of interest as it gave the Court of Appeal a chance to examine the role of the Official Solicitor in such circumstances. Wall LJ concluded, that given the level of care required by the child and the mother's own capabilities, care and placement orders were inevitable and that the mother's potential as a carer had been fairly considered. He was also entirely satisfied that not only was the appointment of the Official Solicitor in this case lawful, but that it was the right – indeed the only proper course and that the Official Solicitor, acting for the mother, was right to concede that the threshold criteria under section 31 of the 1989 Act were satisfied and that a care order was in the child's best interests. He was equally right to accept the advice of the expert that the mother was not in a position to give an informed consent to a placement order. The judge at first instance was therefore plainly right to make care and placement orders. Therefore the mother's rights under ECHR Article 6 had not been breached. The mother's case was put before the court by the Official Solicitor. The Official Solicitor had behaved entirely properly in the case. He was lawfully appointed, acted as a litigation friend should act, and could not properly have advanced an unarguable case on the mother's behalf. The Court of Appeal made clear that the question of adult capacity to give instructions needed to be addressed at the earliest opportunity, but that the local authority would be expected, in the pre-proceedings phase of the case, to be on the alert for the possibility that a parent in particular may be a protected person and may not have the capacity to give instructions in the proceedings. The parent in question should be referred to the local authority's adult learning disability team (or its equivalent) for help and advice. If that team thought that further investigations were required, it could undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter was written, and proceedings were issued, the legal advisers for the parent could be in a position, with public funding, to address the question of a litigation friend. Judgments on capacity should not be made by the social workers from the child protection team. The question of ensuring that a parent during proceedings was properly informed and understood the role of the litigation friend – and, in particular the role of the Official Solicitor – must be a matter for that parent's legal team, and for the Official Solicitor himself. During care proceedings, the likelihood was that the local authority (certainly in the shape of the child protection team) and the parent were likely to be in adversarial positions, and the child protection team would have a clear conflict of interest were it to seek to ensure that the parent in question fully understood the role of his or her litigation friend.

In P (A Child) [2008] EWCA Civ 535 the Court of Appeal provided guidance on three points of adoption law and practice under the Adoption and Children Act 2002; i) what test should be applied when dispensing with parental consent for making a placement order; ii) could parental consent be dispensed with when the adoption agency was still considering either adoption or long term foster care and when the two children may be placed separately; and; iii) was "dual planning" for either foster care or adoption a permissible use of the local authority and adoption agency powers. The two children in this case were both "seriously damaged" and had moved through several different foster carers, separately and together, before the agency concluded that they should be placed separately. The agency first put forward a plan for child A that was to consider both long-term foster care and adoption to widen the pool of opportunities available. A similar plan for child B was later agreed. When the application for a final order came to court, the trial judge dispensed with the mother's consent and approved the agency's plans, despite the guardian's concerns about the lack of contact between the children if they were adopted. In his judgment, Wall LJ reviewed the statutory provisions and language of sections 1 and 52 of the 2002 Act, the Article 8 implications and the relevant case law. He concluded that, among other things: i) the language of s52 should be interpreted so that the judge had to consider whether the welfare of the child required his adoption: the language and interpretation was straightforward; ii) although there were profound differences between adoption and fostering there could be "compelling pragmatic reasons for adopting dual planning in appropriate cases" and the 2002 Act was an attempt to move away from sequential planning; and iii) judges should exercise their powers to set any post adoption contact orders and not leave such contact to the discretion of the local authority. The Court of Appeal stated that a judge must not sanction such an interference with family life as adoption unless he was satisfied that that was both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children. The court should begin with a preference for the less interventionist rather than the more interventionist approach. In assessing what was proportionate, the court had, of course, always to bear in mind that adoption without parental consent is an extreme - indeed the most extreme – interference with family life. Cogent justification must therefore exist if parental consent was to be dispensed with in accordance with section 52(1)(b). The word "requires" therefore does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable. However, this does not mean that there was some enhanced welfare test to be applied in cases of adoption. The Court of Appeal concluded that a local authority could be "satisfied that the child ought to be placed for adoption" within the meaning of section 22(1)(d) of the 2002 Act even though it recognized the reality that a search for adoptive parents may be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering. That being so there could be no objection in principle to dual planning in appropriate cases. As for contact, historically, post adoption contact between children and their birth parents had been perceived as highly exceptional. However the 2002 Act envisaged the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.