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Children Public Law Update (February 2007)

Alex Verdan QC, of 9 Gough Square, reviews recent case law developments in public child care law

Alex Verdan QC, 9 Gough Square

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

knowing that those of special guardianship and adoption are dealt with separately in Adoption or Special Guardianship? by David Bedingfield, published this week on Family Law Week.

Children Giving Evidence
In Re LM (A Child) v Medway BC [2007] EWCA Civ 9 on 19.01.07, the Court of Appeal considered again the vexed question of whether and when children should give direct live evidence in family proceedings. The child, who was 10 years old, appealed against an order made in care proceedings for her to attend and give evidence via video link. The facts of the case were not that unusual. The mother had alleged that the father had physically abused the child. In subsequent interviews the child alleged physical and sexual abuse by the father. The mother confirmed the allegations; the father denied them. The mother then retracted and at the final hearing the parents applied to the judge for a witness summons compelling the child to give evidence via video link. The local authority and the guardian opposed that application on the grounds of the harm and oppression that would be caused to the child by the act of giving evidence. The judge made the order. The Court of Appeal held that the judge had erred in starting from the premise that normally a child might be called to give evidence if that could be done without damage or oppression. The correct starting point was that it was undesirable that a child should have to give evidence in care proceedings and that particular justification would be required before that course was taken. It was further held that it would rarely be right to make such an order. The decision of B v Torbay CC (2006) Fam Law 924 was doubted. (In that case Coleridge J held that however good the procedures were for interviewing children they were only interviews and not evidence that had been tested in court. Inconsistencies in what the child said should, he held, be tested by the Judge who was the best arbiter. The Judge should, where possible, hear the child.) In light of Re LM it would seem that we have reverted to the position that existed before the Torbay case; namely that children will rarely be called in care proceedings. However, in my opinion Coleridge J's view is one shared by many practitioners who are anxious about such grave findings of sexual or physical abuse being made without the key evidence from the child being tested and in a recent case in which I was involved, which is unreported, Pauffley J. directed that a 10 year old child alleging ill treatment of another child should give evidence by video link. The child did so and after cross examination her evidence was held not to be reliable.

Sexual Abuse Allegations in Therapy Sessions
In D v B (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987 (Fam), the High Court on 14.09.06, reminded us of the caution needed before relying on i) allegations of sexual abuse made in therapy sessions and ii) the evidence of veracity experts. In this case the mother's allegations of sexual abuse by the father and by the paternal grandmother had been abandoned by the mother in the original contact proceedings; notwithstanding this, the mother went on to obtain sexual abuse treatment for children from various sources who treated allegations as proved. In the course of the therapeutic sessions the children had made a number of allegations. At a fact-finding hearing ordered on the father's application to enforce contact, a veracity expert reported and gave oral evidence that the children's allegations should be believed, but on the following day the expert wrote to the judge seeking to qualify her evidence, and acknowledging flaws in her approach. Releasing a version of the judgment for publication as an example of a flawed enquiry into false allegations of sexual abuse, the judge rejected the mother's allegations, finding that the children had not been sexually abused by the father, by the paternal grandmother, or at all. The veracity expert had contended, wrongly, that the allegations should be believed; she had not qualified her evidence sufficiently, in particular giving insufficient weight to the fact that she was dealing with therapeutic sessions, not forensic interviews, and the fact that such sessions were outwith her area of expertise. Although therapeutic sessions could provide a source of forensic evidence, in this case they bore little, if any forensic value. Practitioners should all be wary of cases where what children say in therapy sessions is relied on by one of the parties to prove the truth of it and of experts who suggest this is a proper course.

Precedence between Care and Criminal Proceedings
In Re H (Care Proceedings: Adjournment) [2006] EWCA Civ 1875, the Court of Appeal on 19.12.06 considered again which proceedings - care or criminal – took precedence. The care proceedings concerned children who had been living in a household with a man charged with a variety of sex offences, including child pornography. He was awaiting trial. There were a number of child witnesses expected to give evidence at the criminal trial whose evidence was considered relevant to the care proceedings. At a very late stage the police objected to use of the evidence of these witnesses in the care proceedings, seeking an adjournment of the care proceedings on the basis that the witnesses, not just the child witnesses, were very fragile, and would be unable to face the ordeal of giving evidence twice. In addition the alleged perpetrator intervenor applied to cross examine the children. The judge in the care proceedings held that the child witnesses ought not to be required to give oral evidence. The judge went on to adjourn the care proceedings until after the criminal trial. The Court of Appeal held that they might not have come to the same conclusion as the judge had bearing in mind the judge had been seised of the matter, had ten days set aside for the hearing and that normally care proceedings took precedence over criminal proceedings. However, this was a case management decision and a matter for the trial judge. The decision to adjourn the care proceedings was not plainly wrong as there was force in the view that if the young witnesses were only able to give evidence once it was better they gave the evidence in the criminal proceedings as there would be a transcript of that evidence and arrangements could have been made for evidence to be given via video link so that it was also available in the care proceedings. The Court of Appeal also held that the judge's decision not to allow the intervenor to cross examine the child witnesses was premature as he could have looked at the matter in the light of the criminal proceedings to ascertain what evidence should be given and whether the child witnesses could withstand giving evidence and being cross-examined again.

Informing Extended Family of Care Proceedings
In Birmingham City Council v S [2006] EWHC 3065 (Fam), 1.12.06, the issue of whether grandparents should be informed of care proceedings and in fact the very existence of their grandchild where a parent objected was considered. The local authority was trying to identify possible alternative carers from within the family. The father applied to the court seeking to prevent the paternal family from being informed of the existence of the child. The father feared that disclosure would cause difficulties for him within the family and for the family within the Muslim community. In particular, he feared that he might be thrown out of his parents' home if the child's existence were revealed. The father believed that his parents would not wish to be associated with, or to care for the child.

Balancing all the human rights involved, Sumner J held that the right of the child to be brought up within her own family, unless there was a good reason why this should not happen, prevailed. The father's application was refused. The father was to be given a limited opportunity to tell his parents of the position before the paternal grandparents were informed of the child's existence by the local authority.

Change of Care Plan / Human Rights
In Re P [2007] EWCA Civ 2, the Court of Appeal, on 3/1/2007 considered whether a mother in care proceedings was entitled to damages in addition to a declaration that the local authority had breached her human rights by deciding to abandon the care plan for her rehabilitation with her only child without giving her an opportunity to participate in the decision-making process. It decided that she was not entitled to damages. The Court of Appeal held that the concept of damages did exist within the welfare jurisdiction of family law. The European Court of Human Rights had awarded pecuniary damages for loss of opportunity in child care cases. A failure to consult by a local authority in the shift from one track to the other in a concurrent planning case was essentially a breach of the parent's Article 8 right to respect for their family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (The European Convention). It was clear that the European Convention generally favoured an award of damages in cases in which local authorities had infringed the rights of parents under Article 8 by shortcomings in the procedures by which they had taken children into care or kept them in care. However, in this particular case it would have been dangerous to have given the mother notice of the removal of the child or to involve her directly in planning. In all the circumstances the mother was not entitled to compensation for loss of opportunity. The lost opportunity could only have been the possibility of a different outcome if proceedings had been issued at the relevant time, but the local authority had given the mother every opportunity to issue a legal challenge and her circumstances and emotional state effectively precluded the option of an emergency application. Therefore, the breach was purely procedural. The breach was not the decision to proceed to adoption but the procedural failure in reaching that decision without consulting the mother. The evidence strongly suggested that the mother did not have the capacity to participate at the material time. The evidence suggested that the mother's emotional outrage either preceded the removal or flowed from it. There was no evidence that exclusion from the decision-making process was the cause of any independent or additional injury to the mother. Accordingly, it was not necessary to afford to the mother any just satisfaction other than that resulting from the declaration finding that there had been a violation of her rights.

Viability Assessments
In Re M-H (Assessment: Father of Half-Brother) [2006] EWCA Civ 1864, the Court of Appeal on 21.12.06 considered how Courts should approach so called 'viability' assessments, an increasingly popular method used by local authorities to avoid full, comprehensive and thus more costly assessments. At the final hearing the judge criticised the local authority's viability assessment of the step-father as being both inadequate and flawed, but, relying on the guardian's report to correct the flaws in the local authority assessment, refused to order a full independent assessment. The judge, having made the care order, authorised the local authority to place the child for adoption outside the natural family. The Court of Appeal in this case held that an independent viability assessment must take place. The exercise of a judicial discretion in a care case was an amalgam of expertise from a number of disciplines, an essential part of which was, or should be competent social work assessments, which the judge could then appraise and accept or reject. In order to do proper justice to the child's interests in the instant case the judge had required thorough independent social work; the judge had denied himself that input while at the same time recognising that the local authority had failed to provide it. The judge had been under a serious misapprehension if he had believed that the guardian had carried out a full or proper viability assessment. This case is a very useful authority for those arguing that a negative local authority viability assessment is inadequate and an independent viability or full assessment is required.

Alex Verdan QC
9 Gough Square