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Children: Public Law Update (April 2013)

John Tughan, barrister of 4 Paper Buildings, examines two important recent judgments: the Supreme Court's decision in J (Children) and the Court of Appeal's in M (A Child).

John Tughan, barrister, 4 Paper Buildings







John Tughan, barrister, of 4 Paper Buildings

In this update I will cover two recent cases, both of them of particular importance to practitioners.

The first is Re J (Children) and this is important for the review of the law relating to the threshold criteria undertaken by the Supreme Court.  The second is Re M (A Child) which relates to the Article 6 rights of parties to proceedings, in this case whether the special measures put in place were sufficient to protect a father's right to a fair trial in light of his functioning difficulties.

In the Matter of J (Children) [2013] UKSC 9
In J (Children) the Supreme Court was once again reviewing the law in relation to the threshold criteria.  The full text of the decision bears reading by practitioners.  The Court was faced with a previous finding in care proceedings relating to an older child (S).  Those proceedings were brought because of the death of T-L, when she was only three weeks old.   T-L died 20 days after her birth.  She was found to have multiple fractures to her ribs, caused on at least two occasions, bruising to her left jaw, right side of her face, left shoulder and left inner elbow, all caused non-accidentally.  She also had serious and untreated nappy rash.   She had died as a result of asphyxia caused either by a deliberate act or by F taking her to bed with him and M leaving her in F's.  Both M and F were held to have colluded to hide the truth.  In the circumstances, the judge found that

"singling out a likely perpetrator does not help this couple because it must be debatable as to which is worse, to inflict this injury or to protect the person responsible".

M and F then separated.  Domestic violence was a feature of their relationship.  The issue was whether M's consignment to the pool of perpetrators in the case of T-L was relevant to the threshold criteria now.  It was irrelevant, the Court decided.

The court in the current proceedings was critical (at both the Court of Appeal and Supreme Court) of the way the issue had been constructed for the purposes of determination.  The local authority had conceded that

"the only matter that could meet the threshold criteria, at the relevant time, are the findings . . . as to the physical injuries sustained by T-L.  They do not seek to bring failure to protect into the equation."

Baroness Hale describes this as an artificial construct, noting that if the court had explored the other surrounding facts in the case (in the usual way) there may have been other facts which would have formed the basis for the threshold criteria.

The following can be taken from Baroness Hale's review of the authorities:

(i) The starting point is the decision in In re H [1996] AC 563.  The decision of the House of Lords is authority for three important propositions: first, that the standard of proof of such allegations is the simple balance of probabilities; second, that "likely" in section 31(2) does not mean "more likely than not"; rather, it means likely "in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead at p 585F); third, however, "A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom" (p 590A); unresolved judicial doubts and suspicions "can no more form the basis of a conclusion that the second [likelihood of harm] threshold condition in section 31 (2)(a) has been established than they can form the basis of a conclusion that the first [present harm] has been established" (p 589E).

(ii) The third proposition was reaffirmed in Re B (Children) (Care Proceedings: Standard of Proof [2008] UKHL 35, [2009] AC 11.

(iii) Neither Re H nor Re B dealt with the issue of identification of perpetrator.  Both were concerned as to whether abuse had occurred.  Re S-B (Children), [2009] UKSC 17, [2010] 1 AC 678 was concerned with the perpetrator issue.  The principal point in the case was the standard of proof to be applied in identifying the perpetrator of injuries which are found to have been non-accidental. The court reaffirmed that this was the simple balance of probabilities, and pointed to the very real advantages of making such a finding where it was possible to do so.

(iv) Famously, Baroness Hale's judgment in Re S-B included paragraph 49:

"The judge found the threshold crossed in relation to [W] on the basis that there was a real possibility that the mother had injured [J]. That, as already explained, is not a permissible approach to a finding of likelihood of future harm.  It was established in In re H [1996] AC 563 and confirmed in In re O [2004] 1 AC 523 that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the 'real possibility' test adopted in In re H.  It might have been open to the judge to find the threshold crossed in relation to [W] on a different basis but she did not do so."

(v) In Re J Baroness Hale affirmed paragraph 49 of Re S-B.  It was consistent with the other Supreme Court authorities and was to be preferred over Wall J in Re B [1999] 1 WLR 248, also known as Re CB and JB.  Baroness Hale said this (at para 50):

"In In re S-B [2010] 1 AC 678, the "real possibility" that the mother had harmed J was the only basis upon which the judge concluded that it was likely that W would suffer harm in the future. There was nothing else. J had suffered bruises and all bruising to a tiny baby must be taken seriously. But they had probably been caused on one occasion by one parent. It could not be suggested that the other parent had failed to protect him. What was impermissible, as stated in para 49, was to make this, and this alone, the basis for predicting that the mother was likely to harm W in the future. It may well be that when the case was re-heard, facts emerged from which it was possible to make such a prediction.

"51. Cases such as In re S-B are vanishingly rare. As McFarlane LJ pointed out in the Court of Appeal [Re J (Children) [2012] EWCA Civ 380}, [2012] 3 WLR 952, para 109, the Lancashire case [2000] 2 AC 147, in respect of the child-minder, was "truly a one-point case. There were no other adverse findings made against the childminder" (he says "other" but he must mean no adverse findings) (para 108). Likewise, In re S-B "was [a case] of a one-off ('whodunit') injury, there was no question of failure to protect and no finding of collusion" (para 111).  Even in In re F [2011] EWCA Civ 258, [2011] 2 FLR 856, there were no adverse findings against the father (para 112). Most care cases are not "one-off whodunit" cases.  They come with a multitude of facts."

Lord Wilson developed the "vanishing rarity" point and said (at para 70) that the surrounding facts, not just the fact of injury, could also inform the threshold criteria facts:

"Nevertheless in my view leading counsel for JJ and DJ are right to submit that it is a "vanishing rarity" for a past finding of a person's (say a mother's) possible perpetration of injuries to a child not to be accompanied by findings that, in any event, she had culpably ill-treated or neglected the child. The most usual such findings, which, as I have indicated, were all made by Judge Masterman in relation to JJ, are that, even assuming in her favour that she was not the perpetrator of the injuries, she had culpably failed to protect the child from them, had failed to seek medical attention for them and, by lying, had sought to disable the court from identifying her then partner as their perpetrator. Findings of such a character can be profoundly serious because they appear to betoken a mother's willingness to sacrifice the elementary interests of a child to be safe and free from injury on the altar of some adult relationship. On reflection, I am not at all sure that such findings become irrelevant just because the mother is now living, as JJ is now living, with another partner who does not represent a risk to a subject child and from whom there is therefore no specific need for the child to be protected: for no doubt the child will continue to need protection from a variety of situations and from persons other than the new partner. More widely, such findings raise grave concerns about that mother's entire capacity for responsible care; and, if marshalled by a local authority as the factual foundation for the crossing of the threshold, they would need most carefully to be weighed against such evidence as indicated an improvement in her capacity for responsible care as at the relevant date."

Finally, it should be noted that Lord Wilson (with whom Lord Sumption agreed) disagreed (at para 80) with his colleagues in the Supreme Court in this way: 

"My disagreement with most of my colleagues relates to their suggestion, made most explicitly by Lord Hope, that although X's consignment to a pool cannot alone constitute a factual foundation for a prediction of likely significant harm, it can, if weighed together with other facts which are on any view relevant, figure as part of the requisite factual foundation.  I feel driven to the conclusion that their suggestion is illogical; and that if, for the purpose of the requisite foundation, X's consignment to a pool has a value of zero on its own, it can, for this purpose, have no greater value in company. I can only hope that their suggestion, highly authoritative though it will be, will not destabilise the requisite foundation; will not in practice lead to a prediction about a real possibility in the future being founded, in part, on no more than a real possibility about what happened in the past; and will not, by the back door, lead to the ascendancy over the majority view in In re H (Minors) [1996] AC 563 of the minority view which, so Lord Reed (with whom Lord Clarke and Lord Carnwath agree) indicates, would in principle have held some attraction for him."

Re M (A Child) [2012] EWCA Civ 1905
In Re M (A Child) the issue on the appeal was whether the father had been sufficiently protected by the special measures put in place that he was competent to give evidence and instructions. 

The psychologist had first reported that F was competent both to instruct solicitors and to testify.  His second report endorsed the previous opinion that he was competent to testify but not competent to instruct solicitors.  The OS declined to act and a Guardian ad Litem was appointed for F.  The psychologist was asked to assess F's ability to give evidence and concluded that a narrative statement could not be filed and by his report made it very plain that the father's capacity to testify had deteriorated in consequence of mounting stress and anxiety.  F remained capable of giving evidence, but he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility. In order to help him to succeed in giving oral evidence the psychologist suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some "pretty fundamental things" (in the words of Thorpe LJ) that should be done if his competence was to be retained, particularly:

"He should be offered a 'supporter' whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers."

The psychologist further reported:

"[F] becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link ...... F  is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings."

The application on behalf of F to adjourn for the purposes of putting in place the necessary support was refused and the appointed Guardian ad Litem was asked to assist as intermediary for F in Court.  The findings of fact concluded that F caused the non-accidental injuries.

The Court held that F's Article 6 rights had been breached and that the factual issues had to be remitted for re-trial.

The full Judgment of Thorpe LJ bears reading by practitioners in this field.  This case is a salutary reminder that, when dealing with the capacity of an adult to understand, give evidence or take instructions, a breach of that person's Article 6 rights is a fundamental flaw in the process.