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Children: Public Law Update (July 2011)

John Tughan, Barrister, of 4 Paper Buildings reviews recent developments in Public Law Children .

John Tughan, Barrister, 4 Paper Buildings

In this update I will consider the recent decisions relating to

• costs,
• the role of Cafcass,
• the naming of experts,
• the attendance of the child at hearings and
• the issue of s91(14) orders.

All care practitioners should be aware of the decision of the Court of Appeal in Re T [2010] EWCA Civ 1585.  In that case the Court of Appeal was considering the issue of the costs of the intervening grandparents.  They had been joined to the proceedings to defend themselves against allegations of sexual, physical and emotional harm to the children.  Following a five and a half week fact finding hearing and a re-mortgage of their home to pay for their representation, the grandparents were exonerated of all allegations.  Wilson LJ, who has been involved in most of the costs cases over the years, gave the lead judgment of the Court and ordered that the local authority should pay the costs of the intervenors.  The case of Re J (Costs of Fact-Finding) [2009] EWCA Civ 1350 was relied upon by the Court of Appeal and is required reading for all practitioners.   

There are a number of noteworthy issues thrown up by this decision.  The first is that the Court of Appeal agreed that the local authority had acted reasonably throughout the proceedings.  They had properly brought the case and the grandparents had properly been joined.  Nevertheless they were held to be liable for costs.  Note the apparent departure from earlier authority such as Re T (Order for Costs) [2005] 2 FLR 681.  The second is that this decision is potentially very difficult for budget-holders within local authorities who now appear to be liable for the costs of intervening parties.  There is a potential for serious impact on other local authority services if costs are now in play in such circumstances.  That said, the financial impact on the grandparents of the defence of the allegations was serious also.

For more information concerning costs awards in Public Law Children Act proceedings, see Cost Orders in Public Law Proceedings: A New Approach? By Harry Nosworthy.

Role of Guardian v Cafcass
In A County Council v K, C and T [2011] EWHC 1672 the President was considering the role of Cafcass management when in disagreement with the view of the guardian.

The local authority had proposed that T be placed in foster care pending assessment of his parents' capacity to care for him. The parents and T's guardian opposed removal. The family proceedings court accepted that T should remain at home and an interim care order was made.  When the social work team returned to their office after the hearing, their conversations about the case were overheard by an agency employee who was not involved in the case and who had formerly worked for Cafcass.  She sent an anonymous email to Cafcass to the effect that G had "blocked" T's removal from the family home and that the interim care order was insufficient to protect him. After contacting G the next day, Cafcass informed the local authority that it had concerns about the case and G's conduct of it.  It also notified the court that G's recommendation was unsafe and that T should be removed from home.  It requested that G be de-appointed.  A court clerk terminated G's appointment without notice.  The local authority requested the court to reconsider its decision to allow T to remain at home. 

In a review of whether T should remain at home, the President held that there was nothing unhealthy or wrong about a disagreement between professionals in care proceedings, but the crucial thing was that the process should be both transparent and fair.  Cafcass as a body had to monitor the quality of work undertaken by guardians. That was an important function and part of its general structure, but it had to be balanced against a guardian's independence and it did not mean that the guardian's views should be subservient. Where there was an irrevocable disagreement between them, neither had the final say; it was for the court to determine.

The proper course in that situation was for Cafcass to apply to intervene and for its views, together with those of the guardian, to be placed before the court, each providing an explanation why the other should not be preferred.  In the instant case, Cafcass had been complicit in the shocking failure to notify the parents of events and it had adopted a decision-making role that was reserved for the court.

The President went on to conclude that  where discussions about a live case took place outside of the court room, they should be (a) rare; (b) strictly necessary for the proper progress of the case; (c) minuted; and (d) disclosed to all parties and be made available to the court if required.

Naming of criticised expert
In a further recent decision which emphasises the need for transparency of procedure in care proceedings, in X, Y and Z v A Local Authority [2011] EWHC 1157 the issue before the court related to the naming of an expert who had been criticised by the court.  The local authority had originally relied upon the expert in a case of alleged induced illness but had sought to withdraw the proceedings.  The judge anonymised the expert.  

The President held that in this case the judge should not have made the criticisms of the expert (M) that he had made. It was not necessary for the judge to make specific findings about M's report before giving the local authority permission to withdraw or on making an order for costs.  Secondly, it was elementary justice that M should be given the opportunity to debate his report and defend his work.  It was also of the utmost importance that the family justice system should be as transparent as possible, consistent always with the need to protect the identities of the children who were involved in it. Conducting the intense balancing exercise required, the President found that the balance came down in favour of allowing the application to name the expert.   However, simple identification of M's name did not meet the needs of the case. The nature of M's advice and the terms in which it was given were still private.  A proper debate of the issues required disclosure of M's report, properly redacted so as to preserve the anonymity of the children and their parents was required.

Attendance of child
In giving guidance about the attendance of a child at a secure accommodation application, it could no longer be presumed that a child's attendance at court proceedings about him was likely to be harmful, and nor should a child have to prove that his attendance was in his interests.  So held Mr Justice Peter Jackson in A City Council v T, J and K [2011] EWHC 1082.

The court was required to determine as a preliminary issue whether a child (K) should attend the hearing of an application by the local authority to keep her in secure accommodation for three months.   K was 13 years old and was in the care of the local authority, a court having found her to be at risk of physical, sexual and emotional harm from her parents.  She did not accept the findings, had no wish to be in care and exhibited violent and volatile behaviour.  She wanted to attend the court hearing and was supported by her guardian.  The local authority opposed her attendance on the basis that it would create a risk of her absconding, refusing to return to the secure unit, or seeing her parents outside arranged contact times.

The starting point for reaching the decision on such an issue had to be an open evaluation of the consequences of his attendance or non-attendance in terms of his welfare and the court's ability to manage the proceedings fairly.  Each case would depend on its own circumstances, but the following factors would be relevant:

(a) the child's age and level of understanding;
(b) the nature and strength of the child's wishes;
(c) the child's emotional and psychological state;
(d) the effect of influence from others;
(e) the matters to be discussed;
(f) the evidence to be given;
(g) the child's behaviour;
(h) practical and logistical considerations; and
(i) the integrity of the proceedings.

Section 91 (14) Orders
In a case involving the interplay between final decisions for children, special guardianship orders and the jurisdiction to make orders pursuant to s91(14) Children Act 1989, the Court of Appeal in K v Sheffield City Council [2011] EWCA Civ 635 held that the case was not one of multiple applications by the parents.  However it was a case of protracted litigation which had been made considerably more troubled by the way in which M and F had chosen to treat the case and the hearings that had taken place during the course of the proceedings so as to evade responsibility for their actions and by what the judge found to be their lying and manipulation.  A period of calm was an entirely justifiable objective as D's welfare required that she should be able to settle into her placement with G in the context of the special guardianship order.  The case was not a run of the mill case but an unusual one and it was open to the judge to conclude that D's welfare required the imposition of a s.91(14) order.

For a recent article concerning s 91(14) orders more generally, see Section 91(14) Orders – A Never Ending Story? by Lucy Reed.