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Children: Public Law Update (August 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

John Tughan, barrister, 4 Paper Buildings

In this update I am going to discuss some recent cases that touch on the following areas: 

Evaluation of evidence at an outcome hearing
The case of EH v London Borough of Greenwich [2010] EWCA Civ 344 is an important judgment.  The issues thrown up by the case will be well known to practitioners in this area and the comments of the Court of Appeal, and in particular Wall LJ, as he then was, are required reading.

At the fact-finding hearing of the care proceedings the judge concluded that the father had deliberately fractured the arm of the 5-month-old child, had lied about it when questioned, and posed a continuing threat as a result of his propensity to violence.  The mother was found to have been aware that something very serious had happened, and had both delayed taking the child to the hospital and lied about the incident thereafter.  Despite evidence of good parenting, the local authority care plan was to remove both children from the parents permanently.  No steps were taken to foster and support the mother in order to give rehabilitation a reasonable prospect of success; the authority did not actively support the mother in separating from the father, and told her that even if she left the father the children would be adopted. Nonetheless, the mother did leave the father, moving to a women's refuge. 

The father had a form of nervous breakdown, and was admitted to a local psychiatric hospital for a month.  These developments led to an adjournment of the welfare hearing.  Two positive assessments of the mother were produced, but the mother received no therapy, or any help from the authority.  Shortly before the hearing the guardian and both experts were recommending the return of the children to the mother's care.  However, while accepting that the mother's contact was of very good quality and that she related well to the children, the authority favoured adoption, on the basis that there was too great a risk that the relationship between the parents was ongoing.  At the hearing the authority drew the court's attention to a possible sighting of the father near the contact centre when the mother was having contact, to the fact that the father had obtained the mother's new telephone number, and to an alleged sighting by a social worker of the parents together at a shopping centre two days before the final hearing, recorded on CCTV.  The mother denied having met the father, but her alibi witnesses failed to attend court.  The experts' view was that if the relationship was ongoing and the mother was being duplicitous, it would not be safe for her to care for the children.  The judge made it clear that the case should not be further delayed, found that the mother probably had met with the father, and made full care and placement orders on the basis that the mother had lied about an ongoing relationship with the father.  The mother appealed. 

The Court of Appeal allowed the appeal. The court held that:

(1)   It was imperative that when judges in care proceedings were dealing with highly controversial identification evidence, they gave themselves a Turnbull direction; judges needed to remind themselves of the dangers of identification evidence.

(2)   The judge's fundamental error had been to treat his critical findings of fact as determinative of welfare.  He had been entitled to find that the mother had lied about seeing the father once in a shopping centre but should then have gone on to consider why she might have lied and whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently over time.  Her denial of the single meeting for which there was credible evidence might have demonstrated that she could never be trusted to work honestly with professionals for the benefit of children, but the judge should have considered other possible explanations.

(3)   When making a Draconian order, such as a placement order, the judge was required to balance each factor within the welfare checklist in order to justify his conclusions and to determine whether the final outcome was appropriate.  In a case in which the care plan was for adoption, the full expression of the terms of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 must be explicit in the judgment; the judge must show how this extreme interference with family life was both necessary and proportionate.  In this case the judge had failed even to mention the statutory welfare checklist or the right of the mother and children to respect for their family life under Art 8; he should, specifically, have considered whether some additional work should be undertaken with this mother, given her qualities as a parent and lack of support, to give her a fair opportunity to demonstrate that her commitment to the children was greater than her relationship with the father.

In this type of case it was vital that a non-abusive parent who was capable of being a good parent in the absence of the known abuser received proper support at any early stage; the correct approach was that adopted by local authorities who carried out rigorous support work long before the disposal hearing. It was very poor social work abruptly to deny help to a mother who needed and was asking for help to break free from an abusive relationship, without explanation. The conduct of the authority in this case had been entirely inimical to the ethos of the Children Act 1989, wholly contrary to good practice in care proceedings, and unduly adversarial.

I would suggest that the factual scenario of this case is not an uncommon one.  Issues of continuing parental relationship and dishonesty are being constantly evaluated by courts in order to determine the outcome of cases.  The caution emphasised by the Court of Appeal in both evaluating identification evidence and then deciding on the importance of the identification if established, is a clear reminder to courts hearing such issues.

Importantly, the Court of Appeal relied upon the absence of support provided to the mother by the local authority in separating from the father.

Separate representation of children
In Re A (Contact Order) [2010] EWCA Civ 208, the Court of Appeal were considering care orders in respect of two children, on the basis of a care plan for long-term fostering with continuing parental contact every other month.  After a time the local authority applied to terminate contact, on the basis that the mother's behaviour during contact had disturbed the children.  The guardian essentially supported the authority's application.  However, she recorded that the eldest child wished to have contact and a relationship with the mother, provided that the mother did not upset his equilibrium at future meetings, and her recommendation was that there should be a relationship between the child and the mother, provided the mother could be relied on to behave with discretion during such contact.  Shortly before the hearing, the parents applied to replace the guardian, and her solicitor, on the basis that the guardian's position conflicted with the child's views.  The judge concluded that this was not a case for separate representation of the 12-year-old child.  Although the child was bright and articulate, he did not have the maturity to comprehend and weigh all the complex considerations involved, and then to arrive at a proportionate, balanced conclusion.  The judge further considered that there was no conflict of interest between the guardian and the child.

The Court of Appeal held that although there were cases involving children in post-pubertal adolescent rebellion where it was very difficult for a guardian to act, this was a standard situation in which the child's wishes were only an ingredient within the review of the guardian, and only one element upon which the guardian had to report to the court. The guardian had reported the child's views fairly; further, those views accorded closely with the guardian's professional opinion, namely that the child's relationship with the mother should be maintained provided it was safe to do so. There was no conflict.  Thorpe LJ stated that given the expense involved, orders granting separate representation of children under r 14.12(1)(a) of the Family Proceedings Rules 1991 should be issued very sparingly.

All practitioners in this field will be aware of the difficulties in assessing the ability of a child to give instructions directly.  The Court of Appeal are, here, emphasising the need for rigorous analysis of the alleged conflict between the guardian and the child and deciding that the clearly expressed wishes of that child, of fairly reported, are not the trump card to separate representation where those wishes can be said to be different to the child's own best interests.

Special guardianship and allowances
The interaction between special guardianship, private fostering and s8 Children Act orders continues to develop apace.  The role and duties of local authorities in this area is rich with potential conflict.  For cash-strapped social services departments an outcome that does not involve an expensive special guardianship allowance may be the preferred course and practitioners have to be aware of the issues in this developing area.

In Barrett v Kirklees Metropolitan Council [2010] EWHC 467 (Admin) the grandmother put herself forward as a potential carer for the child after he was placed with foster carers by the local authority.  In the care proceedings the grandmother's position was that a care order should be made; the suggestion that a special guardianship order might be appropriate came from the social worker, supported by the child's guardian.  At the final hearing, the court made a special guardianship order to the grandmother, with a 3-year supervision order to the local authority.  In accordance with the local authority's stated policy on special guardianship order allowances, the grandmother was paid an allowance set at two thirds the rate of the fostering allowance.  There was no individual assessment of her financial requirements in respect of the child.  Eventually, after unsuccessful attempts to discuss the issue with the authority, the grandmother sought judicial review of the authority's policy.  Government guidance on special guardianship indicated that

'In determining the amount of any ongoing financial support the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered'.

The question for the court was whether the setting of the special guardianship allowance at two thirds of core fostering allowance was a sufficient approximation to the core fostering allowance.  At the hearing the local authority relied upon a statement by the Fostering Network to the effect that research showed that the cost of fostering a child was 50% higher than the cost of looking after a birth child.

The High Court made declarations that the policy was unlawful, requiring the local authority to carry out a fresh assessment of the payable allowance, and to pay any sums found due as the result of such assessment –

(1)   The local authority's policy on special guardianship order allowances represented a substantial deviation from the government guidance, bearing in mind that such allowances were intended to pay for the cost of bringing up a child who would not ordinarily be the responsibility of the special guardian, and that children who were the subject of orders in public law proceedings all too often came from families who were economically on the margins of society. The required justification had to be proportionally powerful.

(2)   No sufficient justification for that departure had been provided. The rationale based on the costs associated with fostering a child had not been behind the original decision, and also assumed, without establishing, that the local authority's own fostering allowance provided 150% of the cost of bringing up a birth child, while ignoring the special costs that might be involved in bringing up a child who would otherwise be being fostered. 

In Re G (A Child) [2010] EWCA Civ 300 the Court of Appeal gave guidance on the issue of the test to be applied in applications for leave to discharge a special guardianship order.  The mother had an abusive relationship with the father and the elder child went to live with the maternal grandmother when he was 2 months old. A special guardianship order was made in the grandmother's favour.  The father was currently in prison in Thailand following a conviction for a serious sexual offence. The mother applied for leave to apply to discharge the special guardianship order.  The judge refused the mother leave to apply to discharge the special guardianship order on the basis that although there had been a change in the mother's circumstances it was not a 'significant' change.  The mother appealed.   Prior to the appeal the grandmother conceded, by reference to material not placed before the judge, that it would be apt to grant the leave sought by the mother, although she continued to oppose the actual discharge of the order and any change in the child's residence.

The court held that Section 10(9) of the Children Act 1989 applied to persons (other than the child concerned) who needed to apply for leave to apply for an order under s 8; the matters within it did not formally require to be weighed upon an application for leave to discharge a special guardianship order under s 14D(3) and (5), although individual factors might happen to be relevant in an individual case. The judge had been wrong in particular to take into account the risk that the proposed application would disrupt the child's life if it were successful: were the substantive application for discharge of the special guardianship order to succeed, that could only be on the basis that discharge of the order served the child's welfare.

The court further held that different statutory tests expressed in much the same language should be approached, if possible, in the same way.  Although at one level perplexing, there was no relevant difference between the 'significant change in circumstances' test in s 14D(5) and the 'change in circumstances' test in s 24(3) of the Adoption and Children Act 2002; for practical purposes the language was identical (it was inconceivable that the s 24(3) test required proof only of insignificant changes), and the court should adopt an identical approach. Therefore, the approach to an application for leave to apply for revocation of a placement order under s 24(3) of the 2002 Act, set out in M v Warwickshire County Council [2007] EWCA Civ 1084 was also the correct approach to an application for leave to discharge a special guardianship order.

Applying M v Warwickshire CC, a change in circumstances was a necessary but not sufficient condition of leave to apply to discharge a special guardianship order, giving rise to a discretion whether to grant leave. In the exercise of the discretion both the welfare of the child and the prospect of the success of the proposed application should be weighed. Although the two considerations were linked, and often consonant, it might be dangerous to subsume the one into the other.

Re-opening findings of fact
In Re I (a child) [2010] EWCA Civ 319 the mother's first child suffered serious brain injuries and a number of fractures.  At the fact-finding hearing, the court concluded that the mother and a babysitter were equally possible perpetrators of the injuries, except for a haemorrhage caused by shaking.  The court considered that the mother, not the babysitter, had been responsible for the shaking incident, because expert evidence suggested that the shaking injuries had been sustained within 24 hours of admission to hospital, and the babysitter had had no access to the baby in that period. A care order was made and the first child was eventually adopted.

At the mother's subsequent criminal trial a different expert suggested the injuries might have been caused up to 48 hours before admission to hospital. As a result, the prosecution did not proceed with the grievous bodily harm charge; the mother pleaded guilty to neglect.  The local authority removed the mother's second child two days after birth, and issued care proceedings.  The mother sought to re-open the factual investigation into the injuries caused to the first child, in the light of the opinion of the expert used in the criminal trial, although she did not seek to reopen the care or the adoption orders.  The judge refused to do so, primarily because this would significantly delay the final decision as to the future of the second child without any possibility that it would exclude the mother as a possible perpetrator of the injuries. The judge recommended that the first child, eventually, be told that the mother might have inflicted the head injury on her, but that it was not certain that she had done so. Subsequently, a different judge made care and placement orders in respect of the second child.  The mother appealed the refusal to reopen the factual investigation. 

The Court of Appeal dismissed the appeal.   They held that the judge must evaluate the "high point" of the case of the mother on a re-opening of the original facts.  The best outcome that the mother could achieve would be a finding that either the mother or the babysitter had been responsible for the injuries. 

The court went on to hold that the judge had not ignored or breached the principle that it was important that children removed from their biological family should have the best evidence in later life as to why. However, it was important that the distinction between the mother as sole perpetrator and as possible perpetrator was recognised by those who had responsibility for the future of the children. The local authority and adoptive parents should ensure that the children had the best and fullest information, which included the contribution of the expert at the criminal trial.  The full story should be presented in the future to the children precisely as the judge had suggested.

Removal of Children
In Re S (Authorising Children's Immediate Removal) [2010] EWCA Civ 421 the Court of Appeal held that the circumstances in which the children had been removed from the mother with judicial endorsement had been entirely unacceptable, and represented a breach of the rights of the mother and the children under Arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.  This was because: (i) no adequate notice of the proposed removal had been given. The rare circumstances in which the welfare of children demanded removal without notice did not exist in this case; (ii) the authority had not demonstrated that the safety of the children demanded immediate separation from the mother. The index of concern had undoubtedly been raised by the mother's actions, but there was not so much as an allegation that the mother had breached any of the injunctions, and no finding of a breach by either parent; (iii) the judge had been party to a wholesale misrepresentation to the mother. After indicating to her that unless she withdrew her aspiration to secure relaxation of the injunction, the children might well be removed from her, he had authorised removal of the children notwithstanding her withdrawal of that aspiration; (iv) there had been no proper balancing of the pros and cons of immediately removing young children who had never previously spent a night away from the mother, and who were well and happy in her care; (v) there had been no consideration of ordering the mother to return to the refuge; (vi) a removal to foster care should not have been approved without consideration of the crucial issue of contact arrangements, and contact should not have been left to the discretion of the authority; and (vii) if, and to the extent that, immediate removal had been necessary, the judge should have acknowledged the summary nature of the hearing by directing a further hearing as a matter of urgency.

The facts of the case were that the father was a violent bully, who had established predatory relationships with two different Romanian women while they were teenagers.  He had had children with both women and had, at times, required them to live with each other and subjected both families to a chaotic, abusive and dysfunctional lifestyle.  Interim care orders were made, on the basis that two of the children, aged 5 and 9 months, should continue to live with their mother.  It had been established that if the mother were to permit the two children to have contact with the father, the children would be at grave risk of abuse.  The father was, therefore, injuncted from having any contact of any kind with either the children or the mother. Although the father had been excluded from the family home, and was prohibited from approaching within 100 metres of it, the mother agreed to move to a refuge to keep the children safe.  However, she strongly disliked living in the refuge, and within a fortnight announced that she intended to return to the family home.  The authority sought to dissuade her, but did not tell her that if she did so the children would be removed and placed in foster care.  After the mother and children had moved back to the family home, the authority discovered that the paternal grandmother was staying with the mother overnight, apparently to enable her to give evidence for the father at a directions hearing the following day in respect of the father's committal for breaches of injunctions.  At that hearing both the mother and father expressed a wish to secure a relaxation of the injunction against all communication between them, ostensibly in order to allow them to discuss financial and other practical issues.  In response, the authority made it clear to the mother that it intended to ask the directions judge to authorise the immediate removal of the children.  The judge gave an indication that if the mother wished to retain care of the children, she should withdraw from any attempt to have the injunction relaxed.  However, notwithstanding that the mother did withdraw her support for a relaxation of the injunction, albeit after a 4-hour delay, the authority persuaded the judge to endorse a care plan for immediate removal of the children into short-term foster care, with contact to the mother entirely at the authority's discretion. The mother appealed the immediate removal of the children.

In allowing the appeal, the Court of Appeal decided that although appeals were usually against an order and not a judgment, there was a specific power, under r 52.10(2)(a) of the Civil Procedure Rules to set aside or vary not only an order but also a judgment made or given by the lower court.  In this case reality was best served by treating the mother as appealing against judicial endorsement of the change in care plan, rather than against the original interim care orders which had conferred on the authority the power to remove the children irrespective of any such endorsement.