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Children Public Law Update (June 2009)

Alex Verdan QC, of 4 Paper Buildings, surveys the key public law cases of recent months including developments in removals at birth, cultural background and s20 of the Children Act

image of Alex Verdan QC 4 Paper buildings

Alex Verdan QC, 4 Paper Buildings

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

Penal notices
P-B (Children) [2009] EWCA Civ 143 considered a novel point, namely: does a judge sitting in the county court have the power to attach to a contact order, made in public law proceedings under section 34 of the Children Act 1989, a penal notice addressed to the local authority, stating that if the order is not obeyed, the local authority will be in contempt of court and that the officer responsible for the implementation of the order – alternatively the Head of Children’s Services- may be sent to prison? The underlying question being whether or not an appropriately worded order made under section 34 of the Children Act 1989 in the county court is enforceable by committal.

The local authority appealed against the imposition of such a penal notice against their officers to enforce a contact order under s34 of the Children Act 1989.

The appeal arose out of care proceedings in which it was concluded that one of the children involved, now in foster care, should have contact with his natural father every Sunday. The foster care father initially opposed this and frustrated the contact. In response the judge at first instance, HHJ Pearce, made a contact order and in an exceptional case and as a last resort attached a penal notice, because of the local authority's failure to ensure that contact was maintained.
By the time of this appeal, contact was in fact happening, but Wall LJ found that:

i) there was power to enforce the order by committal, noting that under s33 of the Children Act the local authority had the "power to determine the extent to which others" exercise the local authority's parental responsibility (i.e. the foster father);
ii) the judge had the power to attach a penal notice sitting as a county court judge;
iii) the judge had been wrong to sit as a High Court judge under s9 of the Supreme Court Act without hearing argument on the issue or considering transfer ; and
iv) the penal notice had now served its purpose and so was struck out.

The Court of Appeal started from the premise that the contact ordered by the judge was in the best interests of the child, and that it was being frustrated – or, at the lowest, it was in danger of being frustrated by the local authority foster father.  It therefore followed that the order was properly enforceable against the local authority, to which it was - correctly - addressed: see section 34(1) of the 1989 Act. In short, the order was enforceable by committal.

Furthermore, it held that the local authority had the power, given to it under section 33(3)(b) of the 1989 Act to “determine the extent to which” others might meet their parental responsibility for the child. With that power came the responsibility to obey contact orders made by the court under section 34.

The Court of Appeal held that the county court must have power to enforce these orders and the jurisdiction to order committal must exist, as must the power to warn the local authority in advance by way of penal notice of the consequence of its disobedience of an order directed to it.

Cultural background
In B-M (Children) [2009] EWCA Civ 205 a father applied for permission to appeal care orders and other orders, partly on the grounds that the children should be placed with parents of a similar cultural background.

The applicant’s three children had been removed after a fire at the family home. The mother was found to have caused the fire, for which she was jailed for 5 years. The father at first had contact but later this was refused - on application by the local authority - as he was found to have been trying to locate the foster parents’ home.

The father argued broadly that either: i) he should be the carer; ii) if that was not possible the children should placed with carers who more closely matched his cultural background and iii) the trial judge did not have adequate information to make final orders.

Wall LJ reviewed the factual matrix and the relevant judgments. He noted that: i) there was no dispute as to whether the threshold criteria were reached; ii) the judge was fully entitled to give priority to the physical safety of the children and; iii) that he was entitled to agree with the cultural expert’s view that placing the children with an Asian family would place them at greater risk.

Wall LJ considered that the judge was fully entitled to give priority in the welfare equation to the physical safety of the children. His rejection of the alternative placement of the children in an alternative Muslim household. was plainly within the ambit of the proper exercise of a judicial discretion. Furthermore, the judge was plainly entitled to prefer the evidence of the cultural expert and the guardian to that of the psychologist. In such a case, where a judge reached a conclusion which he reasonably regarded as the better of two imperfect solutions, his or her decision was likely to be upheld unless some palpable error of law or reasoning could be identified.

Having refused the application, though expressing some sympathy for the applicant, Wall LJ added a postscript concerning “the wholly inappropriate oxymoron “honour killings” ” which permeated the background to this case, stating:

"The message from this case, which must be sent out load and clear, is that this court applies a tolerant and human rights based rule of law: one which, under the Act of 1989 regards parents as equals and the welfare of the child as paramount. That is the law of England, and that is the law which applies in this case.  Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such. "

Findings of fact
In W-P (Children) [2009] EWCA Civ 216 the trial judge had found that the injuries (a broken femur, bruising and scratches) had been caused by the father but through recklessness rather than intention. The local authority appealed primarily on the ground that the judge could not have reached the conclusion he did in the light of the medical evidence presented before the court. One expert rejected the accidental explanations put forward by the father while the other said that the explanation for the fractured femur was possible though unlikely.

Wilson LJ reviewed the judge’s handling of the evidence and his approach. He made several criticisms of the judge’s approach and the methodology used in his judgment of treating each injury separately. There was danger in that approach in that the presence of the bruising and the scratch, which, according to the expert evidence, might well have been sustained at the same time as the fracture, albeit clearly not by the same mechanism, might very well be relevant to a proper analysis of how the fracture was caused; and vice versa.

Wilson LJ criticized the judge for not standing back and asking himself whether it was probable that a child would sustain such injuries, at the hands of the same man, in two unrelated incidents of reckless behaviour on his part within the space of rather less than three hours. 

He allowed the appeal, even though he was “conscious of the advantage which the judge has over this court in reaching determinations of fact” mainly because the judge appeared to have invented a version of a nappy changing incident, claimed to be the cause of the bruising, that did not tally with the evidence. The case was therefore a “relatively rare example of one in which this court should intervene” as it fell outside the “fairly wide within which this court would wish findings of fact to stand.”

Removals at birth
Bury MBC v D [2009] EWHC 446 (Fam) is another one of Munby J’s decisions on the lawfulness of a local authority’s plan to remove a child from its mother immediately at birth, in this case without informing the mother of their intentions.
The local authority was seeking support of their plan because they were concerned that the mother, who had shown herself to be violent to a previous child, would present a risk of serious harm to the child if she knew the child would be removed at birth. The mother was in labour during the hearing.

The key question identified by Munby J was "whether, despite the requirements of Article 8 of the European Convention, it is lawful for the local authority not to involve the mother and her partner fully in the birth planning for her future child as would normally be required."

In deciding that question Munby J first considered the jurisdiction. He concluded that as the mother was still in labour it was not a welfare question under the Children Act nor one of capacity under the Mental Capacity Act 2005. He therefore decided he had jurisdiction through the inherent jurisdiction of the High Court to grant anticipatory declaratory relief. He also concluded, following the relevant authorities, that he did have jurisdiction to grant a declaration if it is “in the public interest and for the proper protection of a public authority” provided the facts of the case justified such a declaration. In the instant case he decided that the facts met the required extreme standard to justify this very draconian and highly exceptional course of conduct.

Typically helpfully Munby J reviewed the authorities that justified the drastic step of removal without the prior involvement of the parent in the process. Hale LJ, as she then was, in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, at para [28], stressed that “proportionality … is the key.”  Interference with family life could only be justified by what she referred to in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 at para [34] as “the overriding necessity of the interests of the child.”  Subsequently, in Re B (Care: Interference with Family Life) [2003] EWCA Civ 786, [2003] 2 FLR 813, at [34], Thorpe LJ speaking of the making of a care order said that the taking of such a step must not be sanctioned by the judge “unless he is satisfied that that is 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.”  Developing that analysis in the context of an interim care order in Re H (A Child) (Interim Care Order) [2002] EWCA Civ 1932, [2003] 1 FCR 350, at para [39], Thorpe LJ spelt out that separation at that stage (or at the EPO stage, was “only to be contemplated if [the child’s] safety demanded immediate separation”, going on at para [40] to formulate the question as being whether the evidence is sufficient to “sustain the submission that separation was essential to secure [the child]’s safety.” 

Munby J then held that the test which defined the circumstances in which public authority could interfere by removing the child must equally regulate and define the exceptional circumstances in which public authority was entitled to proceed without engaging the parents in the decision making process.  The test was: was the step which the local authority was proposing to take, that is the step of not involving the parents in its planning and not communicating to the parents its plan for immediate removal at birth, something which was justified by “the overriding necessity of the interests of the child” or something which is "essential to secure [the child's] safety"?

Munby J concluded that in the highly unusual circumstances of this case in particular given the mother’s highly distressed state, the very exceptional step was entirely justified and indeed imperatively required in the interests, in the period immediately following birth, of the as yet unborn child given that alerting the parents to what was proposed may have produced the very harm against which the process was designed to protect the child.

Electronic tagging
Re A Minor (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam) concerned the use of electronic tagging to allow contact where the mother had twice wrongfully removed the child to her country of origin. Although not a public law case one can envisage circumstances in public law cases where it could be applied. 

The child at the centre of these proceedings had twice been wrongfully removed by the mother to her country of origin and returned under the Hague Convention. The mother had followed the child back to the UK and after an unsuccessful attempt to appeal the Hague decision was seeking contact with her child. The decision facing the judge was whether she should allow the mother to spend substantial periods of time with the child under an interim order whilst the issues were investigated given the father's fears that she would remove the child again. In the event the parties agreed that the mother should be under a curfew supported with the aid of electronic tagging.

The judgment very helpfully sets out the procedure for making such an order. A specimen order is also included.

The President’s office has devised a procedure whereby electronic tagging can be arranged through the Tagging Team of the National Office for the Management of Offenders (NOMS).  Electronic tagging works by monitoring the whereabouts of the person wearing a tag, but only in a specific location.  The tag is monitored by a device which needs to be installed in particular premises,  that device monitors the tag, and the tagging office is notified if the tagged person is either not in the premises during the relevant times or if the tag is removed.

The President’s office has confirmed that tagging is available in family cases and has provided the following information as to how orders are to be drafted and implemented:

(1) An order needs to be made and sealed by 3.30pm on the day before its implementation.
(2) A representative will attend the premises to install the device the next day.  The order must contain the following information:

(i) The full name of the person(s) to be tagged.
(ii) The full address of the place of curfew.
(iii) The date and time at which the tagged person agrees to be at home (and any other relevant places) for the installation of the monitoring device. 
(iv) A schedule of the times at which the court expects the person to be at home (or any other relevant places) so that the service can monitor compliance. 
(v) The start date of the curfew and, if known, the end date of the curfew, the days on which the curfew operates and the curfew hours each day.
(vi) The name and contact details of the relevant officer to whom the service should report to if there is any breach of the above schedule or if the person appears to have removed the tag.

Residential assessment
In M (A Child) [2009] EWCA Civ 315 the mother successfully appealed against a case management decision not to investigate the possibility of a further residential assessment where she was herself a minor and the application was proposed by the Official Solicitor.

At the hearing subject of the appeal, the circuit judge had refused applications for a doctor to make a general assessment of the mother and for the papers to be referred to an assessment centre to consider suitability. The mother was a minor in the care of the local authority and represented by the Official Solicitor as she also lacked capacity. She had already been through a failed residential assessment and a report stated that there was no chance that she could provide adequate parenting unless she underwent two years of intensive psychotherapy.

In this appeal the local authority, supported by the child’s guardian, submitted that the local authority had done all they could. Thorpe LJ recognized that the judge’s acceptance of this position was “at first blush” within her discretion. However he concluded that her reasoning did not "sufficiently recognize T’s incapacity and dependence on the Official Solicitor” adding that if the Official Solicitor, with the responsibility that he held in the litigation, required that assessment, a judge should be slow to refuse it.

In a supplementary judgment Wall LJ was more forthright. Referring to the case of RP v The Nottingham City Council [2008] EWCA Civ 462, he emphasized that the Official Solicitor “had a plain duty to investigate the case on the mother’s behalf and to obtain whatever evidence he thought appropriate in order to do so.”

Wall LJ stated that the judge’s refusal of the applications “smacked of pre-judgment” as all the judge was being asked to do was consider whether a s38(6) assessment was viable and not whether such an assessment should go ahead.

Wall LJ saw this case in the wider context of the family justice system.  Care and adoption orders were at the very extreme, indeed at the limits of, the court’s powers.  The forensic process had to be fair.  The Official Solicitor had a plain duty to investigate the case on the mother’s behalf and to obtain whatever evidence he thought appropriate in order to do so.  Wall LJ also referred to the ill-informed opinion that experts were the “hired guns” of those who hired them or those who instructed them and that if the application for a care order proceeded to trial on the current evidence the result would have been a foregone conclusion.  A care order would be made.  In all probability a placement order would be made.  All the Official Solicitor wanted to do was to obtain a further independent psychiatric assessment of the mother in order to assist him in deciding how he should put her case before the judge, whoever it was, who took the final hearing. 
Wall LJ concluded that the obtaining of such an opinion was in the interests of a child, the mother and family justice generally.  

Section 20
R (on the application of G) v London Borough of Southwark [2009] UKHL 26 concerned an appeal against a majority decision of the Court of Appeal that a local authority could arrange for a child in need to be accommodated under Part VII of the Children Act 1989 rather than under section 20 of the Children Act 1989.

Giving the lead judgment in the House of Lords, Baroness Hale identified that the issue was one of construction as to what the criteria in section 20(1) meant and how, if at all, was their application affected by the other duties, in particular under section 17 of the 1989 Act, and by the duties of housing authorities under the 1996 Act?

The local authority, in defence, argued that in deciding whether a child required accommodation under section 20(1), the authority were entitled to take into account the other sources of accommodation which may have been available to the child and conclude that he did not require social services accommodation at all and that all he required was help to find or acquire that other accommodation, under the authority’s general duty to provide services under section 17.

Baroness Hale conclusively rejected those arguments after reviewing the history of the proceedings, the relevant recent case law and statutory guidance. In particular she cited, and set out, the checklist provided by Ward LJ in R (A) v Croydon London Borough Council [2008] EWCA Civ 1445 concluding that the appellant met the criteria and was therefore entitled to the support available under s20 of the Children Act 1989.

Baroness Hale then observed that section 27 of the 1989 Act empowered a children’s authority to ask other authorities, including any local housing authority, for “help in the exercise of any of their functions” under Part III; and that the requested authority must provide that help if it was compatible with their own statutory or other duties and did not unduly prejudice the discharge of any of their own functions. This did not mean that the children’s authority could avoid their responsibilities by “passing the buck” to another authority; rather that they could ask another authority to use its powers to help them discharge theirs.