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Children: Public Law Update (October 2009)

John Tughan, of 4 Paper Buildings, reviews the latest public children law cases

Image of John Tughan barrister 4 Paper Buildings

John Tughan, 4 Paper Buildings,Temple

In this issue I will consider some important new decisions relating to the test for the removal of children from their family, the threshold criteria and disclosure of care documents to the prosecuting authorities.

The most important recent decision in the field of public law should already be well known to practitioners in this area.  In L-A (Children) [2009] EWCA Civ 822 the Court of Appeal were again dealing with the test for the interim removal of children from their families.  The Court of appeal confirmed the earlier decision of Re K and H and said that

“…at an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection.”

In L-A it was common ground amongst the advocates that the decision of Mr Justice Ryder in Re L [2007] EWHC 3404 (Fam) did not seek to re-state the law or alter the principles that should be applied.  In that decision Mr Justice Ryder had set out the principles thus:

“10.  Even more stark is the failure to acknowledge the need to consider on the alleged facts of this case whether:

a) there is an imminent risk of really serious harm i.e. whether the risk to ML's safety demands immediate separation (per Thorpe LJ in Re H (a child) (Interim Care Order) [2003] 1 FCR 350); and

b) if not, the question whether mother is able to provide good enough long term care should be a matter for the Court to decide at a final hearing not to be litigated at an interim hearing which effectively pre judges the full and profound trial of the Local Authority's case and the parents' response to the same thereby usurping or substituting for the function of the final hearing or issues resolution processes: Re G (minors) (Interim Care Order) [1993] 2 FLR 839 at 845 CA and Re H (Supra) at paragraph 38.

The second is the nature and extent of the risk. The fact that the Local Authority and/or the children's guardian do not have knowledge of matters either generally or even because of an alleged course of conduct including the deception of a parent does not change the actual risk that a child faces it merely changes their perception or assessment of that risk. If in fact the perception of risk could have been greater had the Local Authority or the children's guardian known of the parents alleged covert meetings, then the question still arises as to whether the consequences of that risk have been adequately protected against or can be so as to ameliorate the same. If so, there will not be an imminent risk of really serious harm because of the new information but rather a risk of harm that may be really serious but which has not yet occurred and may not do so within the proceedings if adequate arrangements can be put into place.”

This may be another example of the tyranny of language, as the Court of Appeal have clarified that Re L did not alter or intend to alter the earlier test.  The cases in which this debate did make a difference were the long-standing neglect cases. With evidence being presented by the local authority of years of low level concerns and an oscillating parenting style both above and below the “good enough” level it was always difficult for a local authority to establish “an imminent risk of really serious harm”.  To try and persuade the lay justices at the first interim hearing that such long-standing concerns crossed that hurdle was difficult.

In MA, SA and HA (Children By Their Children's Guardian) [2009] EWCA Civ 853 the Court of Appeal considered the second limb of the threshold criteria namely the likelihood of significant harm. In that case the appellant children  appealed against an order dismissing care proceedings following a finding that the threshold criteria had not been crossed.  The children (aged four years, twenty months and four months respectively) had been placed in the care of the local authority following an allegation that the parents had physically and sexually abused another child (X) who was living in the family home. 

During a fact-finding hearing, the judge found that the treatment of X by the parents had been shocking and that M and S had been exposed to it.  Findings of physical abuse against M were also made.  However, the judge concluded that in relation to M, S and H, the threshold criteria had not been crossed.  The judge reached that conclusion on the basis of findings that (i) neither M nor S had suffered significant emotional harm as a result of their exposure to the parental treatment of X; (ii) the emotional harm suffered by M as a result of her physical abuse could not be described as significant; (iii) it was not likely that M and S would suffer more harm through exposure to the parental ill-treatment of X because X had been removed from the family home; (iv) there was a real distinction in the way that the parents chose to treat their own children from the way they treated X and so there was no basis for finding a likelihood of significant harm in relation to them. The court had to determine whether the judge, having concluded that M had suffered some harm, was plainly wrong in concluding that she had not suffered significant harm. The court also had to determine whether the judge had erred in concluding that there was no likelihood of significant harm in relation to each or all of the children.

The Court of Appeal decided that:

(1) (Wilson L. J. dissenting on the issue of the likelihood of significant harm) The judgments in L (A Child) (Care: Threshold Criteria), Re [2007] 1 FLR 2050 Fam Div and K, Re [2005] EWHC 2956 (Fam), (2007) 1 FLR 399, as to the concept of significant harm were to be endorsed, L and K considered. However, Hedley J's suggestion in L that the threshold of significant harm might be comparatively low was wrong. Hedley J. had based his suggestion on Nicholls L.J's speech in H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] AC 563 HL. However, in that case, Nicholls L.J. was drawing a distinction between the case where it was established on the evidence that the child had suffered significant harm, and the case where the issue was whether or not there was a likelihood of the child so suffering. In the latter case, it was only necessary to establish that there was a real possibility that he would suffer significant harm. Accordingly, when Nicholls L.J. spoke of the threshold being comparatively low, it was having to show no more than a real possibility of harm that made the threshold a low one. However, there still had to be a real possibility of significant harm. Accordingly, Nicholls L.J. was not saying that the threshold for establishing the significance of the harm was comparatively low; he was not dealing with the meaning and weight of the word "significant" at all, H explained. Given the underlying philosophy of the 1989 Act, the harm must be significant enough to justify the intervention by the state. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demanded it. In the instant case, the judge was fully entitled to conclude that the harm suffered by M was not significant;

(2)  The judge had asked himself whether, on the proven facts, there was a real possibility of the children suffering or being likely to suffer significant harm in the future, Humberside CC v B (1993) 1 FLR 257 applied. Although P's treatment of X was truly shocking, the judge had not erred in concluding that it did not necessarily follow that P's biological children would suffer in the same or similar way. There had been good evidence before the judge that P's biological children were treated differently. Although P's treatment of X was to be deplored, the judge had been best placed to decide on the primary facts and was plainly not wrong in declining to find that the threshold of significant harm had been crossed;

(3)  (Per Wilson L.J.) The facts found by the judge inevitably gave rise to a likelihood that, if restored to P's care, all three children would be likely to suffer significant physical and emotional harm. Although there was no need to take issue with the judge's conclusion that the emotional harm suffered by M as a result of her physical abuse was not significant, the conclusion inextricably driven by the combination of the gross ill-treatment of X and of the ill-treatment of M was that all three children were likely to suffer significant emotional and physical harm.

In the case of H (Children) [2009] EWCA Civ 704 the Court of Appeal were considering the issue of the disclosure of information from care proceedings to the Police.  One of the children (T) was found to have sustained serious head injuries.  This led to the care proceedings and to the assembly of a considerable body of expert medical evidence, which also found other injuries in the form of fractures.  The father made a witness statement in which he confessed to having caused certain of the injuries to T, particularly the fractures to T’s legs and the acute subdural and retinal haemorrhages.  Later, the father filed what is described as a threshold concession document.  The intended fact finding hearing did not proceed on a contested basis and no judgment was delivered.  An interim care order was made, prefaced by a recital recording the father’s admissions, as already indicated; also by a recital that the threshold for state intervention was met.  It was further recorded that it was not considered necessary for the local authority to pursue other findings, namely as to the causation of T’s chronic subdural haemorrhages or of certain other bruising.  The interim care order was made on the basis that the eldest three children were not to be rehabilitated with the mother, she and the father having separated, but on the basis that she was to be assessed as to whether another of the children (A) could be safely returned to her care.  The father also accepted that he would have no further role in the lives of the eldest three children, of whom he is not the father, but that he wished to remain involved in the life of his child, A. 

The Chief Constable made his application for disclosure with a view to assisting his officers in the further investigation of the injuries to T and of any potential criminal responsibility for them.  The Judge summarised the well known guidelines from Re: EC (Disclosure of Material) [1996] 2 FLR 725 and reminded himself of s98(2) of the Children Act 1989.

It was argued that the judge was derailed in the balancing process based on his not having been referred to the revocation in October 2005 of Rule 4.23 of the Family Proceedings Rules 1991 and its replacement by Rule 10.20A of the amending Rules made that year.  Those rules have in fact been further amended since the hearing below, and the new regime is now to be found in the Family Proceedings Rules new Rule 11, as inserted by the Family Proceedings (Amendment) (No 2) Rules 2009 SI 2009/857

By the rule change in 2005, the new and more permissive regime introduced an automatic right to make wider disclosures without the disclosing party being in breach of court.  The grid set out at Rule 10.20A(3) of the 2005 Rules set out in detail such further information as could be disclosed without permission to specific recipients and for specified purposes, including, for example: to Mackenzie Friends, to a party’s spouse or civil partner or a cohabitant, to a close family member for the enablement of support, to counsellors, mediators, approved researchers, accreditation bodies and so on.  In particular, it became permissible for a party to disclose “the text or summary of the whole or part of a judgment given in the proceedings” (but not other information in the proceedings) to “a police officer for the purpose of criminal investigation”.  That in turn was defined as being an investigation conducted by police officers to ascertain “whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it”.

The Court of Appeal agreed that it was “undeniable” that the rule change in 2005 introduced a far wider regime of disclosure without leave than that contained in Rule 4.23 of the 1991 Rules.  The careful balancing act performed by the judge without taking account of that extension could not stand, since it was based on a flawed perception of the degree of confidentiality generally ascribed to children proceedings by the Rules.  Awareness of the fact that disclosure can now be made to the police in prescribed circumstances without the permission of the court would inevitably have influenced his exercise of the balancing exercise and might well (or might not) have tipped the balance the other way.