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Children Public Law Update (February 2009)

Alex Verdan QC, of 4 Paper Buildings, reviews the latest key public law cases

image of Alex Verdan QC, 4 Paper Bulidings

Alex Verdan QC, 4 Paper Buildings

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

Findings of fact
In C (Children) [2008] EWCA Civ 1331, an appeal against findings of fact in care proceedings on the grounds that the trial judge had allowed his findings to be tainted by evidence from allegations that had been dropped by the local authority was dismissed.

There had originally been allegations from three children [S, D & L] of sexual abuse perpetrated by one of the Respondents. Before the hearing, the allegations from [S & D] were dropped, despite the efforts of the local authority to gain further evidence from [D]. The trial judge then made a finding that the allegations from the remaining child [L] were “60 to 65% proved in my judgment if it was [L] alone but it is about 75% with [D] in the equation” and also that the allegations of [D] had been part of his considerations. He initially concluded that [the Second Respondent] had a propensity or tendency or inclination to commit acts of sexual touching against girls of about between ages of 9 and 14 whom he has targeted, and thus to commit against [D] the acts which she alleged. 

Counsel for the appellant appealed on the ground that the judge’s approach had been tainted as he had been wrong to make a finding regarding allegations that were not part of the local authority’s case. Thorpe LJ rejected that submission as the judicial error had not undermined the primary finding. Even though certain passages of the judgment could not be supported, the judge’s assertions in later paragraphs and in the discussion following judgment corrected the error; in that he later considered the evidence of L in isolation, and particularly focusing on her credibility. 

In F-H (Children) [2008] EWCA Civ 1249, an appeal by a local authority against decision of trial judge to dispense with a full fact finding in the course of care proceedings was allowed.

The fact finding hearing had been listed for 12 days and would seek to investigate various issues within the family including allegations that the eldest son of the mother had sexually abused the eldest daughter and her three half-siblings. At the beginning of the hearing the trial judge heard an application from counsel for the alleged abuser to reconsider the need for an enquiry into the allegations of sexual abuse. With the agreement of the guardian the application succeeded in part because the mother accepted that the abuse had occurred and that she failed to protect them. The trial judge concluded in those circumstances that an inquiry would be “unnecessary, inappropriate and disproportionate”.

Wilson LJ rejected this reasoning as the lack of a fact finding hearing undermined the foundations for future work on the case, as was revealed soon after the hearing when the mother retracted her admission. He pointed out that “The fact that certain material need not be considered before a conclusion is reached that the court has power to make a care order in no way supports a conclusion that it does not need to be considered before deciding whether the optimum outcome for the children is to make such an order.”

Wilson LJ stated that although in family proceedings the court has a discretion whether to hear evidence in relation to disputed matters of fact with a view to determining them, additional considerations fell to be weighed by a judge who is considering, at the outset of a prearranged fact-finding hearing, whether in effect to abort it.  That judge should weigh, with appropriate respect, the previous decision that the exercise should be undertaken and should ask whether any fresh circumstances, or at least any circumstances freshly discovered, should lead her or him to depart from the chosen forensic course.  Equally she or he should weigh the costs already incurred in the assembly of the case on all sides and the degree to which a refusal at that stage to conduct the hearing would waste them.  Furthermore she or he should weigh any special features such as, in the present case, the facts that a girl then aged 16 had been shown the court room, that she had participated in discussions with the guardian as to the way in which she would prefer to give evidence and that she was thus expecting that she would imminently be giving oral evidence in some way or another, although the judge should not on the other hand ignore the girl’s likely apprehension at that prospect.  What needed, however, to be avoided at all costs is a sudden decision to abort the hearing in circumstances in which, later, the findings not then made might after all be considered to be necessary.  A judge should act most cautiously before putting the forensic programme into reverse. 

See also In K (Children) [2008] EWCA Civ 1307 where Thorpe LJ also held that a judge had been premature in aborting a fixture.

In M (Children) [2008] EWCA Civ 1261, an appeal by mother against findings of fact arising in care proceedings was dismissed.

The mother had been found to be the perpetrator of head injuries suffered by her child, although her explanation as to the non-accidental nature of the injuries had been supported by some medical witnesses. The mother appealed originally on four grounds which by the time of this hearing had been reduced to just two: i) that the judge had reversed the burden of proof and ii) that the trial judge’s finding that the mother had been the likely perpetrator was inconsistent with her not ruling out the father.

Wall LJ rejected the first ground on the straightforward grounds that the trial judge was “entitled to look critically at any parental explanation of such serious injuries”. He explained how a judge went about sifting and analysing the volume of evidence which disputed care proceedings, involving allegations of non-accidental injury, nearly always produced. In so doing, the judge may well adopt different approaches to different parts of the evidence. The judge may, for example, wholly disbelieve a witness. What mattered is that when the judge reaches his or her conclusion on the facts, it should be clear that in reaching that conclusion he or she had done so on the basis that the burden of proof remained on the local authority and that the essential facts had all been found on the balance of probabilities.

In such circumstances, the judge was entitled to look critically at any parental explanation of such serious injuries and it was not a reversal of the burden of proof for the judge to disbelieve the mother or to find, as the judge did, that the mother's explanation did not explain all the injuries which the child had.

However he found that the judge did err in not ruling out the father having found that the mother was the perpetrator, as it was  not open to the judge to say that she found the mother was the most likely perpetrator and then to go on to include the father as a possible perpetrator.

Wall LJ then referred to the application of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family proceedings, reiterating that counsel have a  “positive duty to raise with the judge not just any alleged deficiency in the judge's reasoning process but any genuine query or ambiguity which arises on the judgment.” The object, of course, was to achieve clarity and - where appropriate- to obviate the need to come to this court for a remedy.

In G & B (Children) [2009] EWCA Civ 10, an appeal by a father seeking to amend the trial judge’s findings of fact, was allowed.

The grounds for the appeal arose during the fact finding inquiry when the judge, unexpectedly, raised the question of whether a child had been unlawfully killed, even though the pathologist could not unequivocally support such a finding. At the time counsel for the father questioned this conclusion and sought an adjournment to gather evidence on the point. The trial judge refused and in her judgment stated that it was more likely than not that the father was the perpetrator.

Counsel for the father appealed on two core grounds: i) that the judge should have allowed an adjournment as the allegation was unexpected and ii) the finding was plainly wrong. Wall LJ, although acknowledging that the trial judge was entitled to act as a quasi-investigative role and to disagree with an expert witness, found that the evidence as a whole did not warrant the finding. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it required very good reasons for the judge to depart from the schedule of proposed findings. Furthermore, if the judge was, as it were, to go “off piste”, and to make findings of fact which were not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made were securely founded in the evidence; and (b) that the fairness of the fact finding process was not compromised. Wall LJ stated that it was a great pity that the judge went down the “unlawful killing” road. It was not a road signposted by the Schedule of Findings prepared by the local authority. It was in no sense necessary for the satisfaction of the threshold criteria.  In addition, and more significantly, it was not supported by the medical and pathological evidence.

Wishes and feelings of child
In H (A Child) [2008] EWCA Civ 1245, an application by the mother for permission to appeal, with appeal to follow, a care order, was allowed with a supervision order made in place.

The mother had separated from the father in 2005 after a history of domestic violence (sometimes perpetrated by the mother). Contact proceedings were initiated but the mother obstructed all contact with the father and even the child’s grandmother, who had been heavily involved with the child’s upbringing due to the mother’s illnesses. During the course of those proceedings an interim care order was made and the child moved in to foster care. The mother refused to comply with conditions for her return and so the LA’s plan changed to seek a full care order which the trial judge (who had not presided over the contact proceedings) allowed, partly on the grounds that the mother had poisoned the child against the father and the grandmother and her continuing exposure to violence. Throughout the proceedings the child, now 10 years old, had been adamant that she wished to return to her mother.

In allowing the appeal, Wall LJ concluded that the trial judge had erred in not sufficiently allowing for the child’s wishes as “the perpetuating of the strong and significant attachment to her mother is a weighty factor to bear in the scales.”

Wall LJ then posed the question “is she going to suffer greater emotional harm by not seeing her grandmother and her father than by putting her in care and by not fostering the good relationship with her mother but by diminishing it as contact is reduced from weekly to monthly and probably every six weeks? -- it seems to me that the judge has erred in failing to perpetuate the fundamental importance of a relationship with and a life with a parent if that is at all possible.  Given the development of a life with mother against the denial of contact with grandmother, it seems to me that the mother’s position prevails.”

In D v Buckinghamshire County Council [2008] EWCA Civ 1372 the appeal concerned findings that the claimant posed a risk to young children and an order authorizing disclosure to other bodies or agencies. The second part of the appeal was allowed on limited grounds.

The appellant was a teacher who had taken care of a 16 year old Indian boy from a family the claimant had befriended in India while teaching there. This situation came to the notice of the local authority and on checking the appellant’s background they initiated proceedings to remove the boy from the appellant’s care and prevent further contact. In the subsequent proceedings the court found that the council had a reasonable belief that the appellant posed a risk and that he was not an appropriate person to have in care of children and made an order that allowed disclosure of these findings to initially up to 20 other bodies but on review this list was reduced, eventually, to three.

In the Court of Appeal counsel for the appellant argued that i) the judge should not have made the findings and had no jurisdiction to do so; and ii) that the was no “real and cogent evidence of a pressing need” for disclosure to other bodies. Hedley J rejected the first ground as the court had the right under the FPR to determine issues if required and, although much of the evidence was “stale” the cumulative effect meant that the judge was entitled to reach his conclusions, despite the appellant not being given notice of the hearing (the appellant had moved abroad for a while). On the issue of disclosure, Hedley J reviewed the statutory framework and relevant cases. He concluded that the judge was right to order disclosure to the DCSF as they were responsible for maintaining List 99. However any other disclosure lacked the “pressing need” required by statute.

Hedley J concluded by noting that a consequence of this decision of the court may be a greater readiness on the part of courts to disclose findings to the DCSF and in due course to the ISA.  It will not of course apply to the great majority of cases where findings are specific to that family, its own members and its own situation.  Where, however, findings may have implications for other children or vulnerable adults the position may be different and careful consideration may have to be given to this specific disclosure.  By the same token, particularly when the extended regime under the 2006 act, which sets up the  ISA, comes into force, disclosure outside the statutory framework (save of course into related criminal proceedings) will be very much the exception.

Court fees
In London Borough of Hillingdon & Ors R (on the application of) v The Lord Chancellor & Ors [2008] EWHC 2683 (Admin) judicial review by four local authorities challenging the legality of the increase in court fees for child care and placement order applications was refused.

The claimants were challenging the fees set out in the Family Proceedings Fees Order 2008 and the Magistrates’ Courts Fees Order 2008 which saw the costs for child care applications rise to £4825 (from £150) and placement order applications from £100 to £400. They had five grounds saying that the Orders: i) were made without any consultation on whether the principle of full cost recovery should apply public law family proceedings; (ii) were irrational; (iii) were made without regard to a relevant consideration and/or under a mistake of fact; (iv) defeated the claimants’ substantive legitimate expectation that the increase in fees would be fully funded by Central Government; and (v) had a degree of retrospective effect.

Dyson LJ reviewed the history of court fees, the public policy and the Parliamentary objectives before concluding that i) Parliament had granted the Lord Chancellor powers to make the fees order and so there was no common law duty to consult; ii) the fees were not irrational when set against the background of a policy of full cost recovery by the Courts: iii) the MoJ had not been mistaken in their belief that that the increases would be fully funded and were aware that the funds would not be ring fenced; iv) the expectations of the local authorities had not been defeated as they would understand that the additional funding was for the local authority as a whole and not to meet each application made.

He therefore rejected all the grounds of challenge and dismissed this application; whilst recognizing the strength of the opposition to the Government’s policy on court fees and that many consider that it is fundamentally misconceived that the court service should not be regarded as a “business” which should pay its way. He pointed out that local authorities had been and will continue to be so compensated in public law family proceedings and that the compensation was sufficient to avoid any real risk that the new fee regime may lead to the interests of vulnerable children being harmed.   He accepted that any measure that is said to have the potential to harm the interests of children must be carefully scrutinized to see whether it in fact carries with it the real risk of harm but concluded that there was no such risk here.

Dyson LJ finally stated that: “Many people may find unconvincing the reasons advanced by the Government in justification of the increased fees.  But the policy is not irrational and is not unlawful.  If it is not unlawful, the fact that the reasons put forward in justification of the policy may be unconvincing is of no relevance. That is a matter for political debate and ultimately for Parliament.”

Residential assessment
In S (A Child) [2008] EWCA Civ 1078, an application for permission to appeal a refusal to allow a further residential assessment for a young parent and her child was refused.

The child was now fourteen months old and the mother had been sixteen when she gave birth. The child had been cared for by the local authority through a long-term foster placement, with whom the child had formed its only long term attachment. The mother was now seeking a further s38(6) assessment principally on the grounds that, following the case of Re L and H [2007] EWCA Civ 213,  the judge had not exercised his discretion correctly in refusing the assessment as that left a “gaping hole” in the evidence relating to the mother’s ability to care for the child.

Wall LJ rejected the application as in reviewing the original judgment it was clear that the judge had balanced the evidence of those experts and social workers who supported the further assessments. The judge was also concerned a) that further delay would be caused by the assessment as the final hearing would have to be adjourned, which distinguished this case from Re L and H; b) about the mother’s aggressive behaviour at a previous assessment and c) about the risk that the child would lose her current foster placement. Wall LJ also took into account that there had already been one residential assessment and that there was not a clear uncontradicted recommendation for a residential assessment and therefore concluded that there was no reason for the Court of Appeal to interfere with the judge’s discretion.

In S v S [2008] EWHC 2288 (Fam) the High Court discharged wardship proceedings concerning a child currently in detention as the child of a failed asylum seeker.

The application by the child’s mother for asylum had at one point in those proceedings been described as “totally without merit”. The failure of the application then resulted in a relative initiating wardship proceedings concerning the child on the grounds that i) the detention was unlawful because of procedural failings: ii) as removal was not imminent detention was not justifiable and iii) in any event detention was excessive and disproportionate and iv) the detention was having an adverse effect on the child’s health. During the hearing these claims were narrowed down to the issues concerning the child’s health and psychological well-being.
Munby J first considered whether the wardship proceedings were merely a device to hold up the asylum process. He concluded that he could hear the proceedings without making a finding that the application was an abuse of process. He then proceeded to consider the appropriateness of wardship proceedings as the means to pursue the claim. He concluded that, despite the theoretical limitless ambit of wardship, the Family Courts should not interfere with the Secretary of State’s powers in asylum issues and that the proper forum for challenging those powers was in the Administrative Court. The simple fact of the matter was that the Family Division of the High Court of Justice could not, even in the exercise of its inherent jurisdiction, make orders which in any way impinged upon or prevented the exercise by the Secretary of State of powers lawfully conferred upon her in the context of immigration and asylum. It was important in these circumstances that the Family Division exercises its wardship powers with great care and circumspection and that it avoided its process being used for some impermissible purpose or in a way which impermissibly impacted upon the proper exercise by the Secretary of State of her powers. 

Placement Orders
In S (A Child) [2008] EWCA Civ 1333, an appeal against refusal to allow a mother’s application for leave to revoke a placement order, was allowed.

The mother had sought leave to revoke on the grounds that circumstances had changed after the failure of an adoption arrangement following which the child was placed in a foster home. However the trial judge found that the decision to place the child in the foster home “was a part of the process of preparing him for adoption” and that “the fact that the foster carer has honestly I think and realistically not committed to adopting at this stage, does not make that foster carer any less a potential adopter.  What that means is that [the child] is placed with a foster carer who is a potential adopter.  That means that [the child] is placed for adoption…”   

Thorpe LJ reviewed the judge’s approach and found that he had erred as the child was placed with the carer under the fostering rather than placement regulations. He went on describe three stages required to say that a child is placed for adoption 1) a panel decision that adoption is in the best interests of the child 2) the approval of the adopters in principle and 3) the matching of the child to the prospective adopters and noted that in this case only the first stage had been reached. The current foster carer had no more than the potential to emerge at a later stage as a prospective adopter. Thorpe LJ therefore remitted the decision back to the judge.

In Sandwell MBC v GC & Ors [2008] EWHC 2555 (Fam) an application by a local authority for a declaration that parents had given lawful consent to placement for adoption of their child was granted.

The parents had two other children who been involved with social services and had decided that, when expecting a third, the local authority would take it into care. They therefore signed forms for consent under ss19 and 20 of the Adoption and Children Act 2002 for placing the child and allowing a future adoption order. However when the prospective adopters’ application came to court, the legal adviser to the court realised that the s20 consent had been given before the child was six weeks old and therefore ineffective. The parents, when asked to renew their consent then declined. The court therefore had to determine whether the s19 consent was effective.

In this judgment King J commented that, on first inspection, the Parliamentary intention seemed clear that placement for adoption was not ineffective for a child under six weeks. However there were potential conflicts with best practice as set out by CAFCASS and other statutory provisions or guidance. She therefore reviewed the relevant passages before concluding that agreement for placement for adoption could be given for a child under six weeks old provided it was a written agreement by way of s19 or Regulation 35 of the Adoption Agency Rules. She also commented that good practice suggested that s19 consents should only be sought after the child is six weeks old. The child was placed under a written agreement therefore her placement was an authorised one. The child was under 6 weeks of age when the consent was signed so prior to an adoption order being made the court had to dispense with the consent of each of her parents on the basis that her welfare required an adoption order to be made. The Judge therefore made a declaration that the placement was lawful and that the parental consent for the subsequent adoption could be dispensed with.

In W (Children) [2009] EWCA Civ 59 an application for permission to appeal, out of time, adoption orders made on the basis of medical evidence later found to be flawed was dismissed.

At the time that the care proceedings began in 2003, the applicants had three children. The second child failed to thrive and was only eating soya milk. He was admitted to hospital with fractures and care proceedings were initiated. The injuries were found to be non-accidental and the eventually the three children were adopted in 2006. During these proceedings the applicants went to Ireland to have a fourth child out of reach of the local authority. However care proceedings were started in 2007 during which a successful residential assessment took place and fresh medical evidence indicated that their second child had suffered from scurvy which could have led to fractures of the kind identified by the doctors.

In this judgment Wall LJ reiterated the role of the court in such appeals, and reviewed the presentation of the medical evidence before the trial judge and the judgments arising from the fact finding and disposal.
Wall LJ also considered that the parents did have status to appeal despite not having been parties to the adoption. He also concluded that despite the passage of time, some 4 years that the case could be re-opened.

He also reviewed the admissibility of fresh evidence under Ladd v Marshall principles and the relevant European cases. He concluded that i) the injuries suffered by child B had a high specificity for abuse; ii) the doctors who provided reports for the proceedings and gave evidence to the circuit judge in 2004 did so honestly, competently and in good faith; iii) non-accidental injury was infinitely more common than scurvy; iv) the medical evidence obtained in 2007 could and should have been obtained by the parents in 2004.

As a result, the public policy issue against overturning adoption orders outweighed other considerations as Wall LJ stated: “In my judgment, however, the public policy considerations relating to adoption, and the authorities on the point – which are binding on this court - simply make it impossible for this court to set aside the adoption orders even if, as the parents argue, they have suffered a serious injustice.”

This was a case in which the court has to go back to first principles. Adoption was a statutory process. The law relating to it was very clear. The scope for the exercise of judicial discretion was severely curtailed. Once orders for adoption had been lawfully and properly made, it was only in highly exceptional and very particular circumstances, such as mistake or fraud or fundamental breach of natural justice, that the court would permit them to be set aside.

The act of adoption had always been regarded in this country as possessing a peculiar finality. This was partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.

Foreign adoption
In A (A Child) [2009] EWCA Civ 41 the local authority appeal against refusal to i) approve proposal to allow a child to live with prospective adoptive parents in the US for the purposes of assessment and ii) make a declaration that there was no legal bar for taking that period in the US into account for he purpose of s84(4) of the Adoption and Children Act 2002, was allowed.

The local authority’s plan was to allow the child to live with the prospective adoptive parents, who were paternal aunt and uncle in the US as, for work and family reasons, they could not come to England for the 10 week period required. This was part of the process for assessing their suitability as adoptive parents. The judge had refused the local authority’s applications as it would run counter to the Court of Appeal decision in Re G [2008] EWCA Civ 105 and would create legal uncertainty: he decided that any declarations could only be made by the Court of Appeal.

Wall LJ, giving the lead judgment, identified that the most important question raised by the appeal was whether “in an overseas adoption, a child’s “home” with prospective adopter(s) during the period of 10 weeks immediately prior to the making of an order for parental responsibility under section 84(1) of the 2002 Act has to be in England and Wales (the Department’s view) or whether it can be with the prospective adopters, wherever they happen to be living (the view of the local authority).”

This, by common consent, was a matter of statutory construction. He therefore reviewed the relevant sections of the 2002 Act and the Regulations, such as the Adoptions with a Foreign Element Regulations 2005. He also reviewed the case law including Re G. He concluded, among other things, that i) the word home in s84(4) of the 2002 Act is not geographically defined and Parliament could have defined it had they wished to do so; ii) the prospective adopters home was in the US; iii) if the statutory construction was that the home had to be in England & Wales, then the policy could work against the best interests of the child by preventing them from being adopted by members of their families living abroad; iv) that there was no reason in principle why the “opportunities to see the child” identified in section 42(7)(a) of the 2002 Act should not take place in America prior to the placement for adoption v) that the child was not being placed for adoption under paragraph 19, Sch 2 of the 1989 Act; and v) that his conclusions would not permit circumvention the procedures applicable to domestic adoptions. He therefore allowed the appeal, approved the plan and made the declaration sought.