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Children: Public Law Update (October 2008)

Alex Verdan QC, reviews the latest key cases concerning care proceedings, adoption and placements. A supplement to this article covering recent cases on foreign adopters will be published shortly.

mage of Alex Verdan QC, 4 Paper Buildings
Alex Verdan QC, 4 Paper Buildings

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

In Re X and Y (Bundles) [2008] EWHC 2058 (Fam) Munby J gave a very clear warning about the consequences of failure to comply with the Bundle Practice Direction. The Court outlined the sanctions available to the judiciary where bundles are not supplied in accordance with the 2006 Practice Direction.

This judgment of Munby J arose from his frustrations at being presented with late and inaccurate bundles. His main complaints were that bundles were regularly late; badly indexed; contained material that should have been weeded out after previous hearings and did not provide a skeleton argument.

Having set out his complaints he reiterated the sanctions available including costs orders, moving the case to the end of the list, adjourning altogether or naming and shaming offenders. In this judgment however he held back from that final sanction as he considered it fairer to give the profession a public warning as to the sanctions available whilst stressing that next time a defaulter may not be so lucky.

Comment: it is critical that the bundle and document management of a case is properly, expeditiously and efficiently seen to; not least because judges are increasingly losing their patience when faced with such situations and applicants run the real risk of costs orders being made.

Care Plans
In Re H (Care Plan) [2008] EWHC 327 (Fam) following a fact finding hearing in which the judge made strident findings against the mother and where the expert evidence suggested that great caution be exercised in relation to her, the local authority care plan advocated unsupervised contact between the mother and the children. During the course of the welfare hearing it transpired that there was a dispute between the local authority social worker and team manager on whether such contact should be unsupervised, the social worker recommending that it should be supervised and that the service manager had signed the care plan but not read the fact finding judgment nor the expert’s report. After the service manager read these documents which were put to her during her oral evidence the local authority changed their position. In her welfare stage judgment Macur J was very critical of the local authority managers stating that the team had worked without coordination, focus or direction and that the care plan for unsupervised contact had failed to take into account the evidence and reached conclusions inconsistent with the welfare of a vulnerable child. The local authority’s legal department should have sought further and fuller instructions to iron out the difference of opinion and ensured its team had read all the relevant material.   Service managers were obliged to review the relevant information before signing off care plans. Further the court warned that in the current climate professional witnesses in family proceedings were not entitled to rely on the cloak of confidentiality to cover their shortcomings within these proceedings.

Comment: differences of opinion within the local authority social work team should be ascertained before attending court.  Every professional witness should be updated and sent all the relevant evidence and any existing judgments and certainly should have read the same before they give oral evidence.

Re A Local Authority v K & Ors [2008] EWHC 2051 (Fam) concerned the placement of an infant child born to parents whose three previous children had been removed from their care after findings that one of them had suffered non-accidental injuries.  The family had originally come to the attention of the local authority when one of their children was found to have serious, life-threatening, injuries. He survived but now required permanent support so he and his two sisters were placed in long term placements. In the original proceedings Hedley J had found that the evidence presented by the parents had been a “cocoon of deceit” and although the mother admitted being the perpetrator he had found that he could not decide whether that was true. Endemic domestic violence and a chaotic family home had not helped.

This case though concerned the couple’s fourth child and whether she could remain in the parents’ care. The mother argued that she was separated from the father, she was now telling the truth and she was free from the stresses of the former home life. The father’s case was that he had not been found to have perpetrated any injury and so could be considered as a primary carer. Hedley J had allowed residential assessments and other measures to ascertain whether the parents had changed sufficiently to remain as carers for the child. However he decided that the evidence before him at this trial, the threat that neither the father nor the mother would be excluded if the other became carer and the background to the case meant that he should make a care order in favour of the local authority. He also justified his decision to allow some time to assess the parents stating that the child deserved every opportunity to remain within her natural family and that the delay caused was a price worth paying in the attempt to keep her in her natural family.  He stressed that he had done his utmost to give the child every chance of being brought up within her natural family having refused to terminate the subsequent community assessment and having on a least two occasions refused local authority applications to remove her from her parents’ care.      

Comment: even where a couple had had 3 previous children removed from their care there were still strong arguments to be made for further assessment despite the delay that would follow given that every child deserved every chance of being brought up by their parents and the courts should consider and investigate that chance fully and properly. 

Re K v K & Ors [2008] EWHC 1561 (Fam) confirms again that the court can re-open findings of fact in light of new evidence.  In her judgment Black J had to reconsider findings she had made in a previous hearing after new evidence was revealed by the police during the course of a series of part heard hearings in front of different judges. Her lengthy reconsideration of the facts resulted in her overturning her previous findings and rejecting the father's allegations that he had been stabbed by members of the mother's family and that they had also set light to his home. Instead she found that he and his family had instigated those incidents. She also made remarks at the start of the judgment concerning the difficulties caused by the lack of preparation of the evidence by the lawyers and the police. The court emphasized: a) the importance where parties had diametrically opposed cases of obtaining independent evidence e.g. from the police; b) chasing up the obtaining of such information when so ordered and c) the importance of proper preparation for fact finding hearings in cases where there are allegations of domestic violence stating that when such evidence becomes available piecemeal, it is much more difficult to take in its implications than it is when it is presented as a properly collated bundle at the outset.

Comment: once again this case shows the importance of proper case preparation; obtaining the full evidence as soon as possible and not piecemeal; not just obtaining the required directions but following them through and also of ensuring judicial continuity.

Human rights
RK and AK v the United Kingdom (38000/05) concerned a claim by a couple, whose child had been taken into care, who was later diagnosed with brittle bone disease, for breaches of Article 8 and 13 rights. The court found there was a breach of the couple's Article 13 rights. The applicants, R.K., and his wife, A.K., were British nationals. They had a daughter, M., who was born in July 1998. In September 1998 M. was taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M. was diagnosed with brittle bone disease. She was returned home in April 1999. The case concerned the applicants’ complaint that their daughter was placed temporarily in care due to a medical misdiagnosis. They relied on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy).

It was not disputed that the interim care order had interfered with the applicants’ right to respect for their family life. However that interference had been “in accordance with the law” and pursued the legitimate aim of protecting M. Indeed, the authorities, medical and social, had a duty to protect children and could not be held liable every time genuine and reasonably-held concerns about the safety of children in their families were proved, retrospectively, to have been misguided. The Court considered that M., a three-month old baby, had suffered a serious and unexplained fracture and that the social or medical authorities could not be faulted for not immediately diagnosing brittle bone disease, a very rare and difficult condition to identify in small infants. Moreover, the baby had been placed within her extended family and in close proximity to her parents’ home so that they could frequently and easily visit. As soon as another fracture had occurred outside of the applicants’ care, further tests had been carried out and, within weeks, M. had been returned to her home. The Court was therefore satisfied that the domestic authorities had had relevant and sufficient reasons to take protective measures, which had been proportionate in the circumstances and had given due and timely account to the applicants’ interests. Accordingly, the Court held unanimously that there had been no violation of Article 8.

However, the Court found that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation. As such redress had not been available at the relevant time, the Court held unanimously that there had been a violation of Article 13 and awarded the applicants, jointly, EUR 10,000 in respect of non-pecuniary damage and EUR 18,000 for costs and expenses.

Comment: an interesting article 13 family case in particular in light of the modest ‘general’ damages awarded of about £7,500.

In M & N (Children) [2008] EWHC 2281 (Fam) Munby J set out some principles for handling cases where there are other relevant proceedings, such as immigration:

i) family practitioners have an ongoing duty to remain up to date with the other proceedings even if the other matter is handled by other professionals;
ii) parents are under a duty to instruct those advising them in any other relevant matter to keep their family solicitors informed of what is going on;
iii) it is the duty of those advising in the other matter, having received such authority, to keep the family solicitors informed accordingly;
iv) practitioners involved in family proceedings have a duty to take adequate steps before each hearing to find out the current state of the other proceedings and when any formal decision is likely to be given;
v) it is preferable to obtain copies of the correspondence and other documents on the other solicitors’ files rather than attempting to find out what is going on by means of questions in correspondence;
vi) where the family adviser is having difficulty obtaining the relevant information, they should consider approaching the court to make a peremptory order for delivery of the file. The application should not be left to the next hearing if that will cause delay;
vii) where the outcome in the family proceedings is likely to be affected by the decision of some third party, consideration should be given to engaging the third party decision maker in the family proceedings.

Comment: given the increasing number of cases, both public and private, which involve a foreign or immigration issue these guidelines, provide a very helpful checklist.

Placement Orders
In Re S-H (A Child) [2008] EWCA Civ 493 the initial care plan for adoption which the court approved and no doubt had led the court to make the placement order had, after that order had been made, been itself shelved and replaced by one that the child should be placed in foster care for an indefinite period and if all went well then moved to an adoptive placement. The mother applied for leave to revoke the placement order despite the evidence clearly having established that the child could not be returned to her. The judge at first instance found that there had been a change of circumstances as set out in section 24(3) of the Act but that he should not exercise his resultant discretion and grant leave when taking into account in particular the mother’s prospects of successfully applying to revoke the placement order; the interests of the child and that it was unrealistic to consider a return of the child to his mother. 

The Court of Appeal in considering an appeal against a refusal to allow leave to apply to revoke a placement order, held that it was an insufficient foundation for a placement order that the long term aim of the court was that a child should be adopted and that the necessary foundation was that the child should be in a condition to be adopted and ready to be adopted; even though in some cases this may take time and be difficult. The Court of Appeal added that it would occasionally be proper for the court to grant a parent leave to apply to revoke a placement order even when there was no real prospect of the court finding that it would be in the best interests of the child to return to live with its parents.

Comment: it is also worth noting that the Court of Appeal in this case - where the first instance judge, after having heard 8 days of evidence did not give any judgment - suggested that where a judge heard evidence and argument, e.g. over the course of a number of days but the case then settled without for the need for determination; it would normally be helpful for him to give a short judgment describing the stage the proceedings had reached; the important evidence heard and the reasons for approving the agreed terms.

Re B [2008] EWCA Civ 835 the Court of Appeal considered the significance to the making of a placement order of a local authority not having disclosed expert reports to its agency adoption panel and concluded that this was a serious and material error which justified setting aside of the placement order; despite prospective adopters having been identified and matched and a placement being imminent and considered by the guardian to be in the child’s best interests. The case was remitted to the panel for fresh consideration with the local authority having to issue a fresh placement order application if the agency recommended adoption.  The Court expressed regret for the delay but considered that the statutory breaches were so grave - given that the non disclosure meant that the panel had been given inaccurate information on material issues - that a successful appeal was inevitable; stressing that the 2002 Act and Adoption Agencies Regulations 2005 laid down a careful process which had to be respected and scrupulously followed.  It followed that if the decision of the panel was flawed in any material respect, then the decision maker could not properly consider its recommendation and could not be satisfied that the child should be placed for adoption.

Comment: The Court of Appeal, stressing the need for transparency, gave detailed guidance as to the provision of reports to such panels namely that all panel members should be made fully and properly aware of all the available material relevant to their decision.

In B (Children) [2008] EWCA Civ 695 the parents had four children but they had become subject to local authority care after both the mother and the father had been remanded in custody following domestic violence. There was also a history of drugs abuse. They did not oppose the care orders but sought instead that the youngest two children should not be placed for adoption but placed in long-term foster care like the elder children. The district judge initially supported that approach, backed by a psychologist and the guardian. However the original guardian fell ill and a new guardian, during the course of a series of hearings, argued strongly for adoption. The psychologist’s view also softened. In the light of that the judge ordered a further hearing at which he dispensed with consent and granted placement orders.

In this application, the parents’ argued that judge should not have reopened the findings, that foster care was in the children’s interest so that contact with the siblings could be maintained and that the mother’s consent was not dispensed with properly. Wilson LJ, although sympathetic, rejected those submissions saying that it was open to the judge to reopen proceedings given the new evidence and the fine balance of the original decision. He stated that it was clearly established that, in the exercise of its semi-inquisitorial jurisdiction on behalf of children under the Children Act 1989, the court had power to review even clear findings as to past fact: see the decision of this court in Re S (Discharge of Care Order) [1995] 2 FLR 639.  Also, though there were errors in the judge’s dispensation of consent, e.g. the judge did not expressly remind himself of the matters to which, by s.1(4) of the Adoption and Children Act 2002, he was required to have regard and failed to address the issues of dispensation in the body of the judgment, the Court of Appeal concluded that the judge clearly had the loss of links with the biological family following adoption in mind as the principal factor in favour of long-term foster homes and and dealt with dispensation in his orders and so these errors did not form a firm basis for an appeal.

Comment: it is interesting that despite the fact that the judge in this case when dealing with the issue of dispensation asserted that the best interests of the child lay in adoption and failed to use the statutory language namely that the child’s welfare “requires” consent to be dispensed with; the Court of Appeal concluded that had this been brought to his attention he would no doubt corrected himself and  have used the correct wording.


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