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Children: Public Law Update (February 2012)

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

John Tugha, barrister, 4 Paper Buildings

John Tughan
, barrister, 4 Paper Buildings

In this review of recent cases in the area of public law, I will consider cases that deal with the following issues: 

Re S, A and K (17th November 2011) (Document No. AC9501902)
Re S, A and K is an interesting decision which encourages courts to engage fully in the fact-finding process and to use the powers vested in the court to the full to compel the presence of witnesses.

The local authority appealed against a decision that a child (S) had not been sexually abused by the third respondent (K), her stepfather.  No criminal prosecution had been brought in respect of the allegations as there was insufficient evidence. K attended the first day of the hearing but not the second, and he failed to give evidence. The judge held that she was not satisfied that K had sexually abused S as she was unable to make any findings of fact.  The Court of Appeal held that  the protection of children in public law proceedings was primarily in the hands of other agencies, but when that matter was brought into court it was incumbent on a judge to examine the matter fully and to determine whether the child was in any danger and if the child's account of abuse was credible.  K had been due to attend to give evidence, there was no explanation for his absence, and he was a compellable witness.  The judge should have issued a subpoena to compel his attendance, F (A Child) (Care Proceedings), Re [2007] EWCA Civ 810, [2007] Fam. Law 1059 and R (A Child) (Fact-Finding Hearing), Re [2009] EWCA Civ 1619, [2009] 2 F.L.R. 83 applied. Accordingly, the judge had erred in not hearing all the available evidence and not requiring K to give evidence before reaching her decision.  Further, there was a manifest deficiency in the judge's reasoning and the balancing act that she had performed before reaching her conclusion. The judge had not seen K give evidence or be cross-examined and she should have proceeded to ask what adverse consequences could be drawn from his absence and from certain lies that he had told in the past.

Re D (Children) [2011] EWCA Civ 1743
In Re D (Children) (14.12.11) the Court of Appeal was considering a case involving alleged non-accidental injuries to a baby and is illustrative of the problems facing a Court prior to the conclusion of the formal fact-finding process.  P was taken to hospital for bruising and scratches to her face, where it was discovered that she had a skull fracture and a healed rib fracture. When M and F were told about P's injuries the hospital records showed that M had turned to F and asked what he had done.  The local authority commenced care proceedings, and R and P were put into foster care pending a fact-finding hearing to determine the cause of P's injuries.  

At an interim care hearing an interim care order was made in respect of P and an interim supervision order for R.  The judge decided that F could have supervised contact and M unsupervised contact with R. In coming to that decision the judge said that she was making no findings about who had caused P's injuries, but she found M's automatic reaction at the hospital persuasive as that of a protective mother, and that her subsequent separation from F demonstrated her ability to prioritise the children over F.  There was no evidence of any harm being caused to R, who was thriving.

The local authority submitted that it was illogical for the judge to treat the parents differently having accepted that they were both possible perpetrators. F submitted that both parents should be treated as a manageable risk and therefore he should have unsupervised contact, and that the judge could only have concluded in the way she did by deciding that he was more culpable than M. 

The Court of Appeal held that it was clear that the judge was aware that it was inappropriate and impossible to make findings at that stage, but at times she seemed to have formed a view that F was more culpable and that M posed less of a risk. She should have proceeded on the basis that the injuries were unexplained. Her decision was vitiated by her approach in deciding that one parent posed more of a risk than the other, and that decision was integral to her judgment: she had made it clear that she had granted M more contact because she had separated from F. Since the judge had exercised her discretion on the wrong basis, it was appropriate to substitute an order that M and F should have the same level of contact with R pending the fact-finding hearing.

O v Coventry City Council (Adoption)
In O v Coventry City Council (Adoption) the Court  of Appeal were considering a number of different and difficult issues including the power to grant injunctions to restrain a local authority from removing a child from foster carers and the balancing of evidence of professional concern about an approved foster couple. 

The foster parents, who had fostered over 20 children for the local authority, began to foster the elder child when he was 2 months old, and the younger child was placed with them at birth. When the children were 17 months and 7 months old respectively, the judge made care and placement orders in respect of both children. Seven months later, a plan for the phased move of the children to prospective adopters was commenced and the children met the adopters.  However, the day after the meeting, the foster couple applied for adoption orders in relation to both children and for revocation of the placement orders.  The children were not moved to the adopters' home as planned, and the adopters themselves suspended all contact until the matter had been resolved. The judge treated the foster couple's applications as notices of intention to adopt, under s 44 of the Adoption and Children Act 2002, with adoption applications to follow 3 months later (this being the minimum notice period set out in s 44); he also granted them an injunction restraining the local authority from removing the children for the relevant notice period, and adjourned their application in respect of revocation of the placement orders.  The local authority appealed. The Court of Appeal ruled that there was jurisdiction to make such an injunction but that the judge had applied the wrong principles, concluding that an injunction should not have been granted in this case.  In dismissing the adoption applications the Court of Appeal held that:

(1)   Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was engaged: the foster couple were the only parents the children had ever known, and were the children's 'psychological parents', within the meaning of that expression as explained by Baroness Hale in Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629. Stranger-adoption, and the removal of the children from the foster couple, would mean an interference with their family life; such an interference would be a proportionate step only if the court were satisfied, on balance, that the risks in maintaining the children in their present home outweighed the risks of moving them to a stranger-adoption placement;

(2)   While it had been established that the couple might not have been approved as foster parents if the local authority had undertaken thorough assessments, that they might have had their approval terminated if the local authority had referred the complaints made by the foster father's former partner to the fostering panel, and that the adoption panel would have been unlikely to have approved their application to adopt, it did not necessarily follow that this application to adopt the children was bound to fail. The couple had in fact been approved as foster parents, that approval had been extended year on year, and the evidence showed that they had discharged their responsibilities as foster parents well, including their responsibilities towards the children in this case. The court, unlike the adoption panel, was not considering an application to adopt 'a child', but an application to adopt these specific children, whom the foster couple had cared for throughout almost the whole of their lives;

(3)   Overall, on a finely balanced decision, the risks in maintaining the children with the foster couple outweighed the potential risks of moving them into a stranger-adoption placement. The foster father's relationship with his older three children, and his failure to provide them with financial support, was of concern. The greatest concern was, however, the uncertainty surrounding the couple's long-term financial security, which created a constant pressure for the family to be weighed in the balance when evaluating their ability to provide secure, stable long-term care for the children (see paras [122], [124], [127]).

W (A Child) [2012] EWCA Civ 106
In Re W (A Child) (8.12.11) the court of Appeal were dealing with an Appellant Father who submitted that the Judge at first instance had erred in declining to hear oral evidence.  The Judge had approved the interim care plan to separate him from his 14-month old son (W).

W's mother (M) had difficulty in caring for her children. Following his birth, W was moved to a foster placement with M and F present in the placement. A subsequent report from a social worker stated that M's presence at the home was no longer a viable option but that F could remain there. Thereafter, the local authority became aware of a series of events, cumulatively indicating that F was unable to supervise W in that setting. The social worker set out a list of matters of concern, which included the acrimonious relationship between M and F that was harmful to W; occasions when F fell asleep whilst supervising W; and W sleeping on the floor and banging himself on the floor. F admitted that on occasions he had fallen asleep when he was supposed to have been supervising W.  The local authority proposed an interim care plan, which involved separating F from W and supervised contact. At the interim hearing F applied for oral evidence to be heard on the basis that the facts were disputed.

The Court of Appeal held that the judge did not err in declining to hear the oral evidence.  There was no procedural unfairness. The need for oral evidence was not pressed upon the judge. There was no direct challenge to the factual reports submitted by the foster carers. F's case was not that the events which gave rise to the local authority's concern regarding W's supervision did not happen; rather lapses in supervision were understandable or explicable. The matter did not weigh heavily with the judge. The judge would not have gained any radical insight if the foster carers had been called to give oral evidence. Separation was only to be ordered if the child's safety demanded immediate separation, A Local Authority v KAB [2010] EWCA Civ 871, [2011] 1 F.L.R. 669 applied. The judge rightly focussed on W's immediate safety. It was a straightforward welfare test that the judge had correctly applied. The judge was plainly right to hold that W's welfare was of paramount importance, and the decision that he reached to protect W until the final hearing was within the range of reasonable determination.