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Children: Public Law Update (May 2010)

John Tughan, of 4 Paper Buildings, reviews the key decisions in children public law over the past few months

John Tughan, Barrister, 4 Paper Buildings

In this update I will discuss the issues of children giving evidence, the important comments of Wall LJ as to local authority practice, recent decisions on the issue of press freedom and reporting restrictions orders and a further judicial review decision on what is a "looked after child".

Children giving evidence
In W (Children) [2010] UKSC 12 the Supreme Court were considering the approach of family courts to the decision as to whether a child should give live evidence.

The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children.  A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents.  The father had since been charged with 13 criminal offences and was at the time of the hearing on bail awaiting trial.

In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so.  The local authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness.  In November 2009 the judge decided to refuse the father's application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.

The Court of Appeal dismissed the father's appeal.  They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court.  The appeal was heard prior to any feedback from the Family Justice Council.

The Supreme Court unanimously allowed the appeal and remitted the question of whether the child should give evidence to the judge hearing the matter.

The court stated that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach to this issue.  The current law, which was held to establish a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights.  In care proceedings there must be a balance struck between the article 6 requirement of fairness, which normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved.  No one right should have precedence over the other. 

Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point.

When considering this issue, the family court must weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child.  The court sets out a number of factors that a family court should consider when conducting this balancing exercise. 

Local authority practice – support for parents in abusive relationships
In EH v Greenwich [2010] EWCA Civ 344 the courts were faced with a common situation in care proceedings.  The issue at first instance was whether the parental relationship was continuing and the impact that should have on the outcome for the children. 

The two children had been removed from the parents' care in 2008 after the youngest suffered a fractured arm.  At a fact finding hearing the judge had concluded that the father, who had a history of violence, probably caused the injury, that the mother must have been aware of the injury, that she had failed to protect the child by delaying taking her to hospital and that she had lied to the court to protect the father.  However, the judge had also praised the parents saying that "It would be very unfortunate if the children had to be removed from their parents".  He also referred to what seemed to be the local authority's closed mind on the case.  Following the fact-finding the mother tried to leave the father and moved to a refuge while continuing to have contact with the children at a contact centre.  At the subsequent disposal hearing, the local authority argued that the mother was still seeing the father, using evidence both of sightings together at or near the contact centre and social services offices and of the fact that the father had obtained the mother's mobile phone number.  Accordingly, the local authority alleged, the mother could not be trusted to care for the children as she was deliberately deceiving the social workers and the court.  The mother denied these allegations, even calling for expert evidence on the CCTV footage.  The judge however found that there was an ongoing relationship and that because of this the children should be made subject to a care plan and placement orders.

Baron J reviewed the handling of the evidence and the requirements of the Children Act and the ECHR.  She concluded that, although the judge's finding of fact should stand, his failure to mention or deal with the Children Act undermined his orders and he had not considered whether there were any other options in place of adoption, especially where all the experts agreed that the mother had good parenting skills.  Wall LJ agreed with and reinforces that judgment.  He went on to make severe criticisms of the local authority's conduct which struck him as

"(a) entirely inimical to the ethos of the Children Act 1989; (b) wholly contrary to good practice in care proceedings; and (c) unduly adversarial…

…Indeed, I find it difficult to believe that in 2010, more than 18 years after the implementation of the Children Act, a local authority can behave in such a manner. Here was a mother who needed and was asking for help to break free from an abusive relationship. She was denied that help abruptly and without explanation. That, in my judgment is very poor social work practice.

If we have learned anything in the past few years it is quite how difficult some women find it to break away from abusive relationships, however rational such a breach would appear to a disinterested outsider. Here, in my judgment, was a mother demonstrating that this is what she wanted to do. She went to a refuge. She both needed and sought help, and was quite improperly rebuffed by a local authority which had plainly pre-judged the issue."

Reporting restrictions orders
There have been two recent decisions on the issue of reporting restrictions orders.

In the first Munby J disapplied s12 of the Administration of Justice Act 1960 and refused to order anonymity for the experts giving evidence.  In the second, Holman J ordered some limited publication and also refused anonymity to the professionals involved.

In A v Ward [2010] EWHC 16 (Fam) Munby J (as he then was) stated that the circumstances of the case were unexceptional.  The child was submitted to hospital with fractures and on that basis alone care proceedings were initiated. In those proceedings, the trial judge dismissed the proceedings because "there was no cogent evidence" that the parents had injured their son.  She also went on to criticise one of the medical experts involved who had "failed to be guided by the duty of professional detachment that the court requires of experts". The parents subsequently sought to assist the BBC in making a programme about the proceedings and applied to disclose information resulting in interim contra mundum orders to prevent disclosure pending a substantive hearing.

In this hearing the parents were requesting that s12 of the Administration of Justice Act 1960 be disapplied while the professionals involved made applications to preserve their anonymity. Munby J undertakes an exhaustive review of the relevant statutes and the English and European jurisprudence, including discussion as to whether it is the documents that are prohibited from publication under s12 or the information contained within them. Noting the changing social attitudes to "transparency" in family courts, he disapplies s12 and states that if no proceedings had been initiated, the parents would not have been fettered by the Act: so "Why should things be so very different merely because proceedings were brought which ultimately failed?"  He also concludes that the applications for anonymity should be rejected partly because any expectation of anonymity relied on is not justified in either principle or practice as the law reports contain the names of many expert witnesses; and also because there are "powerful arguments, founded in the public interest, for denying expert witnesses anonymity."

In Wakefield MDC v The Media [2010] 262 (Fam) the applicants' three children had been adopted at birth because of concerns over the parenting arising from the father's unusual personality and the mother's low intelligence.  The first adoption occurred in 2005 at which time the parents approached the media to raise awareness of how they felt they had been unfairly treated.  This resulted in publication of several articles, some including photographs of the new born baby with the birth parents.  Accordingly the local authority successfully sought injunctions preventing the birth parents from seeking to publish the matter further.  These injunctions had been respected by the applicants but they now sought to discharge them in order that the father could publish a book about their experiences.

In this judgment, Holman J noted that since there are no ongoing legal proceedings, the court may vary the restrictions imposed by s12 of the Administration of Justice Act 1960. He then balances, following Re S, the position and rights of all the parties including those of the two sets of adoptive parents who had been informed of the application. He notes that the welfare of the children is of the highest importance but any restrictions should go no further than are actually necessary, justifiable and proportionate to protect the children and the Article 8 rights of them and their adoptive families.

He then goes on to make orders about what can be reported precluding such information as i) the age of the children, ii) identifiable pictures of the birth parents as the children may make the connection between themselves and the birth parents; iii) any live broadcast interview so as to prevent inadvertent disclosure; iv) any reference to gender. However he did not order immunity for the social workers and other professionals involved.

These are important decisions in this fast-developing and changing area of practice.

Judicial review – "looked after child"
In R (TG) V London Borough of Lambeth [2010] EWHC 907 QB the judicial review proceedings were concerned with a local authority that had provided the claimant with accommodation in March 2006 when he was 16.  It now refused to deal with the claimant as a 'former relevant child' for the purposes of leaving care support.  It was accepted that if the claimant, who became 21 years old in April 2010, was a 'former relevant child' he might be entitled to additional services, principally described in section 23C of the Children Act 1989, from the local authority, up to the age of 24. Whether he was such a child or not depended on whether he was at any relevant time a 'looked after child' within the meaning of section 22 of the 1989 Act. This in turn depended crucially upon the functions that the local authority was exercising when it originally provided the claimant with accommodation.

The claimant's contact with the local authority had initially been with the Youth Offending Team who determined that he was in need of accommodation and referred him to the Homeless Persons Unit. A social worker at YOT completed a Homelessness and Social Vulnerability report in respect of the claimant.

McCombe J, reviews and contrasts the leading cases of R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535 ("M"), in which the claimant's claim that she was a 'former relevant child' failed, and R (G) v Southwark LBC [2009] 1 WLR 1299 ("G"), where a claim under section 20 of the Children Act succeeded. He states that that a child only becomes a 'looked after child' once accommodated by a local authority in exercise of its social services functions. In the present case, the judge says, the children's social services team never had the claimant's needs drawn to their attention. Accordingly he concludes that is an 'M' Case and not a 'G' case and the claim for judicial review must fail.

John Tughan