AlphabiolabsBerkeley Lifford Hall Accountancy ServicesIQ Legal Training

Home > Articles > 2013 archive

Children: Public Law Update (January 2013)

John Tughan, barrister, 4 Paper Buildings, considers some recent important public law decisions of the Supreme Court, Court of Appeal and High Court relating to children.

John Tughan, barrister, 4 Paper Buildings

John Tughan, barrister, 4 Paper Buildings

In this article I will look at recent cases that deal with the following issues:

Jurisdiction to make an interim care order in relation to a baby born abroad and brought to the UK within the proceedings
In Bridgend County Borough Council v GM & Anor [2012] EWHC 3118 (Fam) Moor J was considering the jurisdictional basis for an interim care order.  The background was that the child (SA) was born in Spain, the parents having fled the UK just prior to her birth.  They had a history of involvement with UK based local authorities and had already had a child removed from their care permanently.  The parents left the hospital with the child and the Spanish authorities achieved an order for their return to hospital.  The UK local authority then applied for an emergency protection order in this jurisdiction and orders were made seeking the whereabouts of the child.  The UK local authority was in communication with the Spanish authorities and the latter then applied, in Spain, for the removal of SA from the parents.  The parents then absconded and moved to another part of Spain, with SA.  The UK emergency protection order was extended. 

When the matter came before the High Court, Hedley J invited the Spanish authorities to place SA in the care of the UK local authority and he held that it was lawful for the UK local authority to make arrangements for that placement.  He also invited the Spanish Court to transfer the proceedings to the UK pursuant to Article 15 Brussels IIR. 

Some months passed before the family was located but the Spanish authorities did succeed in locating SA and they effected the removal of SA from the care of her parents.  The UK local authority applied for and were granted an interim care order (in the family proceedings court) and the social worker travelled to Spain and returned with SA.

In determining the issue of jurisdiction, Moor J noted that Part IV of the Children Act 1989 does not provide for the jurisdictional basis for care orders but that it was now settled that the jurisdictional basis for the institution of public law orders is derived from Article 8 of Brussels IIR, as follows:

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."

The judge held that the question of habitual residence was a question of fact and referred to Re J [1990] 2 AC 562.

The test for habitual residence is derived from a number of sources.  In this case Moor J relied upon the European Court of Justice case of Mercredi v. Chaffe (Case C-497/10) [2011] 1 FLR 1293 which deals with the test to be applied at Paragraph 56:-

"…the concept of 'habitual residence', for the purposes of Articles 8 and 10 of the Regulation, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State - other than that of her habitual residence - to which she has been removed, the factors to be taken into consideration included, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case."

I would recommend that practitioners faced with this issue read the judgment of Moor J.

The judge said that he was

"quite satisfied that the mother has not established habitual residence in Spain. She did not make a considered decision to make a new life for herself in Spain. She fled this country for the sole reason that she was intent on avoiding her baby being taken into care.  On her case, she left only some eleven days after she was told that the Local Authority intended to take care proceedings following the baby's birth. I am quite satisfied that she had no intention to leave this country at all until then."

However, the judge also accepted the submission that to establish jurisdiction the child must be present at the time the proceedings were issued.  This is as a result of Article 8.

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."

Therefore, the care proceedings, issued in the UK one day before SA arrived here, were flawed.  He dismissed those proceedings and gave the local authority permission to issue fresh proceedings.

The approach to findings of fact in cases of alleged non-accidental injury
In Re M (Children)  [2012] EWCA Civ 1710, (20.12.12) the Court of Appeal were dealing with the case of a child who, at five months of age, had three (possibly four) fractured ribs, those fractures having occurred on at least two occasions, and fractures to her skull.  The complexity of the case derived from the fact of the "spectacular" and complex bilateral skull fractures but without very serious underlying brain injury.  The experts described themselves variously as "baffled" by the extent of the skull fractures coupled with the clinical presentation of the child as appearing to be reasonably well.  They were of the view that the presentation was not just unusual but inexplicable.
The term "expert" can be applied to a range of expertise but the cast list of experts in this case reads, to this practitioner, as a Who's Who of expertise in the field of paediatric bone injury.

In dealing with the appeal, Munby LJ reminds us all that "what is said at an experts' meeting is not strictly evidence in the case" (per McFarlane J in Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam), [2008] 2 FLR 1708, para 109), though it can of course be put in cross-examination or re-examination.

As a summary of the dilemma facing the trial judge, this passage of the evidence of Mr Richards is a good example:

"Professor Bishop who has looked at the metabolic aspects of bone disease has not been able to identify anything. We have all commented that we have not seen fracturing like this except in very extreme circumstances. I did raise one circumstance where I have seen similar severe fracturing, forgetting the job that her father was doing, but it was an adult injured by a helicopter walking into a rotor blade, a rear rotor blade who had very extensive fracturing and died several hours afterwards which is the kind of injury that I have encountered if you see this kind of fracturing. So if this kind of fracturing with minimal response were to occur there must be something odd about the bones and Professor Bishop cannot find anything but he did say he has not seen fracturing like this either so why he cannot find any metabolic abnormality to explain it, I still wonder in my mind if there is some explanation we are not capable of finding as doctors.  This is unprecedented in the experience of someone like myself who has been in neurosurgery for nearly thirty years, Steven Chapman who has been a radiologist for many, many years, Professor Bishop who has specialised in bone abnormalities and between us we have got a lot of years where we have seen lots of things but we have not seen this with such a minimum disturbance to a child."

Munby LJ expressly approved the passage from the judgment of Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam):

"There remains a temptation to believe that it is always possible to identify the cause of injury to a child."

The trial judge concluded that this was a case of non-accidental injury.

In giving judgment on the appeal, Munby LJ described as "crucial" the leap that the judge made from

"How M's skull fractures were caused remains a mystery, but there must, of course, be an explanation, albeit at this stage unknown",

to a finding in the very next sentence that:

"The fact that the parents have not provided a truthful account supports a finding on the evidence, including the drawing of reasonable inference, that it is more likely than not that the injuries are non-accidental."

This, together with the judge's conclusion that there was not something unexplained in the case, meant that the appeal would be allowed and the case sent back for re-trial.

Also on the issue of fact-finding, in M (A Child) [2012] EWCA Civ 1580 (21.10.12) the Court of Appeal were facing the issue encapsulated by the following exchange:

"Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] 'As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental', at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation."

Ward LJ concluded that the effect of the judge's view of the case was the same: that, absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation.  That was, concludes Ward LJ,

"[a] leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury."

In passing, practitioners should also be aware of Ward LJ's frustration at the fact that orders following fact-finding hearings are never drawn properly with a proper recitation of the findings made.  This practitioner believes that Ward LJ first made the point in Re O & N and he re-visits it in this case.  He describes "the rantings of an old man are simply passing into the ether."

Disclosure of the details of a person who has made allegations to a local authority concerning a party to the proceedings
Inthe Matter of A (A Child) [2012] UKSC 60 the issue was whether a local authority ('ZCC') should be ordered to disclose social work records to the parties in proceedings concerning a child ('A'), which would reveal the identity of a young woman ('X') who has made allegations that she suffered sexual abuse from A's father ('F') when she was a child.

Lady Hale described the Court having to reconcile the irreconcilable:

"On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm."

The conclusion reached was that

"The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X's privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail."

Jurisdiction to make sequential interim care orders pursuant to the s37 Children Act 1989 jurisdiction
Finally, in Re K (Children) EWCA Civ 1549 the appeal concerned the jurisdiction of the Court to impose a series of interim care orders on a local authority within private proceedings pursuant to the power under s37 Children Act 1989 after the local authority had provided the s37 report and concluded that the commencement of s31 proceedings was not merited.

McFarlane LJ describes s37 as the "jurisdictional bridge" between private and public proceedings and notes the significant fact that where a court orders a report under s37 a limited jurisdiction is established by s 38 under which, depending on the facts of the case, the court may make an interim care order or interim supervision order.

The conclusion reached was that the court does have jurisdiction to make a series of interim care orders pursuant to the s37 jurisdiction.  McFarlane LJ describes it as "wholly artificial" to limit the court's ability to utilise the s 37 jurisdiction to 'one shot' in each case."


"as a matter of must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court's concerns, the court has jurisdiction to extend or renew its s 37 direction.  It will be a question in each case to determine whether such a course is justified."