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Children Public Law Update (June 2007)

Alex Verdan QC, of 9 Gough Square, analyses the latest public law children cases

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Alex Verdan QC, 9 Gough Square

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

Expert Evidence
In Re M-M (A Child) [2007] EWCA Civ 589 the Court of Appeal drew a firm line between the obtaining of a further expert opinion and the carrying out of forensic tests. The child had suffered a rare ulna fracture and a tibia fracture which the parents could not explain. At the fact finding hearing the mother raised the possibility that the child might suffer from osteogenesis imperfecta, brittle bone disorder. An expert called in by the mother could not find any signs of the disease but suggested further testing to rule out that possibility. The judge held that the expert witness had exceeded his brief and there was no justification for the further tests. Upholding that decision, the Court of Appeal said a clear boundary was to be drawn between a medical decision in respect of what was clinically required to inform future treatment of a child and a forensic decision concerning what was necessary to ensure proper determination of a legal issue in a causation hearing. A medical decision was for doctors, whilst a forensic decision was a case management decision for the judge. There had to come a point at which the garnering of evidence was sufficiently full and thorough to enable the court to arrive at a conclusion on the required standard of proof, namely the balance of probabilities. The benefit of further investigation was of too small a dimension to justify the considerable costs in terms of both money £5,000) and time: a further 8 weeks for the tests. The judge had, accordingly, been entitled to come to the conclusion he had as the decision on whether to carry out further tests was a matter of judicial case management.

Re M-M can be contrasted another decision of the same Court of Appeal made on the same day. In Re B (A Child) [2007] EWCA Civ 556 the first and second appellant mother and father appealed against a decision refusing them permission to instruct independent experts in care proceedings concerning their baby. The respondent local authority brought care proceedings to determine the baby's future. The baby had been separated from its parents at birth because of a history of the father's dangerousness and the failure of the parents as a couple to provide good enough parenting for an earlier child who had been released for adoption. At a directions hearing, the parents sought to persuade the judge to allow their instruction of independent experts in addition to those who had reported for the local authority. The judge, having found that there was nothing relevant that could be added to existing reports, refused that request. It was contended that the judge's decision restricting the ability of the parents to test the experts relied on by the local authority could be perceived as biased. The Court of Appeal held that it was important that parents at risk of losing a child forever should have confidence in the fairness and even handed nature of proceedings. In the instant case, whilst the judge had not shown any bias against the parents, it would probably be sensible to allow the expert to be instructed, particularly where, if that expert shared the opinion of the other experts, there was a measurable chance that the anticipated final hearing would be unnecessary or could be abbreviated. Re B should be read with the previous decisions of the Court of Appeal in W v Oldham MBC [2005] EWCA Civ 1247 and Re S [2006] EWCA Civ 981, where Wilson LJ reaffirmed that a second opinion could be sought where the opinion was pivotal to the case but that it could only be determined that a report was pivotal when the first reports had been filed.

In Oldham MBC v GW and PW [2007] EWHC 136 the parents were suspected of inflicting a non-accidental injury on the baby. In the course of the care proceedings a finding of non-accidental injury was made, and the parents were separated from the child for 12 months. It was ultimately established that the child was suffering from a rare condition, that there had been no non-accidental injury, and that the care of the child by the parents had always been exemplary. Ryder J found that a family court and the expert who advised it had got the case wrong and it was important to undertake an analysis of what had gone wrong both in terms of expert evidence and court processes. Local authorities should always write a letter of instruction when asking a potential witness for a report or an opinion, within proceedings or pre-proceedings, conforming to the principles set out by the Family Justice Council. When requesting and collating existing materials, all parties should be vigilant to record requests of third parties for disclosure and their responses. It was no longer sufficient, in difficult cases, for the experts to leave the question of whether there should be a forensic second opinion to the courts; the court was entitled to ask whether alternative expert evidence was necessary and if so, in which discipline. Experts ought also to be asked at the earliest stage what questions they thought they or another expert should answer. Experts should be asked not only whether their opinion was mainstream or orthodox, and what the range of orthodox opinion might be, but also whether within that range of opinions the answer might be that the cause of an injury was unknown, highlighting the unusual features of the case that might indicate contrary interpretations. In essence they should take the court through the differential diagnosis, highlighting any contradictory or inconsistent features. The court and experts generally might have become too focused in trying to reach agreed solutions to difficult problems; areas of disagreement might be as important as areas of agreement.

Confidentiality of Documents
In Re R (Secure Editing of Documents) [2007] EWHC 876 (Fam), Mr Peter Jackson QC, sitting as a Deputy High Court Judge on 14 April 2007, held that it was the court's responsibility to ensure that confidential information was not given out as a side effect of legal proceedings. In the instant case there had been a gross breach of the mother's right to respect for her private and family life, in that notwithstanding an order that all contact details were to be omitted from any documents filed and served on the father, who had been registered at Level 3 under the Multi-Agency Public Protection arrangements, the father had been served with documents containing the mother's mobile phone number, her new surname and her new address. The President of the Family Division had approved the following procedure wherever confidential information was to be protected: i) the court was to identify any case in this category, making a clear statement that special restrictions applied to the case, and directing that information shall not be contained in any document (not merely allow the information to be withheld) and taking care not to make unnecessarily wide orders for documentary disclosure because of the difficulty of editing large amounts of documentation accurately; ii) the court should also spell out the chain of possession so that one appropriately selected party gathered the documents and released them only after careful checking; iii) responsibility for the process should be given to one or more named individuals, such as the guardian's solicitor (the solicitor for the protected party could be given the opportunity to check the edited documents before they were sent); and iv) the editing/checking task ought to be carried out by someone with knowledge of the case, including the details of the information to be protected, and of the importance of the task, which was not an administrative one.

Permission to Advertise
In Re K (Adoption: Permission to Advertise) [2007] EWHC 544 (Fam) the High Court considered the issue of whether and when local authorities needed the courts' permission to advertise a child for adoption. Dismissing the local authority appeal against an order permitting an anonymised adoption advertisement, the court noted that a child could only be advertised for adoption after the local authority had been satisfied that the child ought to be placed for adoption, which involved not only an adoption recommendation by the panel, but also a decision by the appropriate officer. In this case the authority had sought to advertise the child for adoption before assessments of the family had been completed, before the case had been to the adoption panel, and before the local authority had come to a concluded view on whether the child's best interests would be served by rehabilitation to the family or by adoption. The justices' order would be set aside, as the local authority's application had been premature, and should have been dismissed.

Sexual Abuse
In D v B and Others (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987, Mr Stephen Wildblood QC in a lengthy judgment reviewed the way the courts should approach the issue of allegations of sexual abuse arising in therapy and gave useful guidance. A significant part of the evidence in the case related to the therapeutic sessions that were carried out by the NSPCC with the children. The court held that allegations made in therapy required extremely careful handling given that: i) they are solely therapeutic; ii) they were never intended to bear any forensic function; iii) they did not follow the guidance about interviewing young children (in particular, Achieving Best Evidence); iv) they were based upon the express premise that abuse had taken place; v) there was no attempt at 'open ended questions to support and encourage the child in free recall'; vi) the assumption was made and communicated to the child that 'the father had done bad things to her' and that is what she was to tell the NSPCC therapist about; vii) the sessions in this case took place nine months after the child first began to speak of being hurt by the father and came after a lengthy period in which the assumption had been made and established with the child that the alleged abuse had taken place; viii) the allegations made during these sessions could not be regarded as spontaneous; ix) the sessions were heavily influenced by the mother; x) the child had her allegations of abuse confirmed and reinforced (as is only to be expected in therapeutic sessions with a young child who is taken to have been abused).

In Newport City Council v W & Ors [2006] EWHC 3671 (Fam), HHJ Masterman repeated the warning given by Holman J in Re Y [2004] 1 FLR 855 as to how the physical examination of a child in a sex abuse case should be carried out and how the information should be recorded so as to provide reliable evidence and reduce the intrusion to the child. In the Newport case, sexual abuse was diagnosed on the basis of one positional examination by a locum consultant paediatrician who took one photograph of the child's hymen. The court gave the following guidance to avoid the child being re-examined: where the examination raises suspicions of sexual abuse, the child should be examined in more than one position with more than one photograph being taken ideally, where appropriate, by way of video colposcopy.

In Re W (A Child) [2007] EWCA Civ 102, the Court of Appeal held that where a judge had found that a child had not been sexually abused by one parent, it logically followed that he could not hold that the other parent had failed to protect the child against sexual abuse and his conclusion that the child had suffered significant harm under the Children Act 1989 s.31 on the basis of that failure to protect could not stand.

In Re L (Care Order: Immigration Powers to Remove) [2007] EWHC 158 (Fam), Holman J held that the making a care order which was necessary for the welfare of the child was not in any way related to the immigration issues concerning the child and mother. Furthermore, that Children Act 1989, s. 33(7), under which a child under a care order could not be removed from the UK without either the written consent of every person with parental responsibility for the child or the leave of the court, did not apply to the Secretary of State for the Home Department and did not prevent him from deciding to remove the child under the immigration legislation. The statutory purpose of s. 33(7) was clear: to prevent a child who was the subject of a care order being removed by a person with parental responsibility without the written consent of the local authority, alternatively that of the court; and also to prevent the authority from arranging the removal or emigration of the child without the consent of the child's parents or alternatively that of the court. Parliament had not intended by enacting s. 33(7) to outflank the powers and duties entrusted to the Secretary of State under the immigration legislation.

Care Plans
In Re S and W (Care Proceedings) [2007] EWCA Civ 232, a case that demonstrated the difficulties that could arise in care proceedings when there was a late change of stance by the local authority, the Court of Appeal re-stated the relationship between court and local authority in care proceedings. Not only did the court have a duty rigorously to scrutinise the care plan and to refuse to make a care order if it did not think the plan in the child's best interests, the court also had the right to invite the local authority to reconsider the care plan, if the court had come to the conclusion that the plan, or any change in the plan, involved a course of action contrary to the interests of the child and would be likely to lead the court to refuse to make a care order. The 'lesser of two evils' test, when choosing between making no order or approving the care plan, did not come into play until after the local authority had been given every opportunity to reconsider the plan, in the interests of the child. Although the judge had been entitled to act as he had, the local authority's subsequent unprincipled conduct had made a re-hearing inevitable; the authority should bear in mind that it was not entitled to implement whatever placements it thought appropriate pending the re-hearing. Any attempt to implement the changed care plans without the express approval of the court would not only be unprincipled in the context of the relationship between the court and the authorities, it would also be irrational and likely to be struck down by a court exercising the power of judicial review. The decision-making process of the local authority was strongly criticised; in particular the local authority should not have considered itself bound by the decision of the fostering panel.

Residential Assessments
In Re L and H (Residential Assessment) [2007] EWCA Civ 213 the Court of Appeal found that the judge had been wrong to refuse the residential assessment recommended by the expert, characterising it as involving therapy, and therefore outside the scope of Children Act 1989 (the 1989 Act), s. 38(6). An assessment for the dual purpose of providing (i) important information on how well the mother managed the practicalities of parenting and (ii) important, if not vital, information on how the parents' relationship bore up under the stress of caring for the child in a supervised environment, was central to the issue of the child's welfare. Before removing children permanently from their natural families and placing them for adoption with strangers, the court should be astute to ensure that the case had been fully investigated and that all the relevant evidence necessary for the decision was in place. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 required it, as did the underlying philosophy of the 1989 Act. There would, of course, be cases in which a s.38(6) assessment would be a waste of time and public funds: parents who had inflicted injuries on their child but had failed to acknowledge their responsibility or a woman who did not accept that a paedophile partner was a risk to the child, but this was not such a case. The local authority and the guardian might be right in their view that the parents were simply unable to parent satisfactorily, but it was manifestly in the interests of the child to obtain evidence on the issue.

Alex Verdan QC
9 Gough Square