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Children: Public Law Update (July 2013)

John Tughan, barrister of 4 Paper Buildings, examines some important recent judgments of particular interest to public law children lawyers.

John Tughan, barrister, 4 Paper Buildings

John Tughan, barrister, 4 Paper Buildings

In this article I will consider recent decisions relating to the following areas of public law practice:

Vulnerable child witnesses
Mrs Justice Pauffley has handed down two recently reported decisions on the issue of whether a vulnerable child witness should give live evidence in proceedings.  One decision relates to public law proceedings and one relates to private proceedings.  Of real use to practitioners is the test to be applied, the way in which the judge applied the test and the statements of intent from the bench as to the control of the proceedings whilst a vulnerable witness is giving evidence.

In Re G and E (Children) (Vulnerable Witnesses) [2011] EWHC 4063 (Fam), the public law proceedings included an allegation of sexual abuse by G against her father.  G was 17 years old at the time of the hearing.  G had quite significant learning difficulties, functioning according to both of the experts who had assessed her for the purposes of the proceedings at around the level of an eight year old child.  The test that Pauffley J posed in answering the question before the court was that set down by Baroness Hale in of Re W [2010] UKSC 12 and was described in the following way.

The first issue to be determined was whether G was competent in accordance with the provisions of s.96(2) of the 1989 Act.  In order to reach the discretionary stage, first the court needed to be satisfied that G understood that it was her duty to speak the truth and that she had sufficient understanding to justify her evidence being heard.  Given the unanimous expert view on this issue, the court concluded that G was competent.

The second question was that of the discretionary exercise.  In conducting this exercise there were two issues to be weighed in the balance.  The first was that the G's evidence might bring about the determination of where the truth lay.  The second was the damage the process of giving evidence itself might do to G's welfare.

The court concluded that G should give evidence.  The factors that were relevant included:

  1. It was "highly significant" that the sole basis for the local authority alleging that the threshold criteria were met was the allegation of G.  Accordingly, this was not a secondary or peripheral allegation, but rather this allegation was at the heart of the Ccurt process in this case.  The way to determine the allegation was to hear G, and then her parents, give evidence.
  2. It would probably be of considerable assistance to the court to hear G's account being challenged.
  3. The special measures suggested by the experts were appropriate.  Those included the need for short sessions, regular breaks and careful assistance with the phrasing of questions.
  4. The willingness of G to give evidence was central to the decision that she should do so.  The court made it clear that were G not willing to give evidence it "need hardly be said that there would be no question of requiring her to provide an oral account".

Of the control of the questioning and the role of the court, Mrs Justice Pauffley made clear that the parties and advocates could expect robust case management.

"I would not shrink from stopping cross examination altogether if it became too onerous for G or, indeed, if the process ceased to have value. I have done so in other cases because the needs of the young person plainly required swift, decisive and radical intervention.   Limiting the subject areas for questioning likewise may become necessary according to G's responses; and I would react as the needs of the situation demanded."

The court referred to the constant reviewing process during the evidence of a witness such as G.  There would be constant assessments of the utility, fairness and impact of the questioning and, interestingly, the role of the court was described as "inquisitorial and paternalistic".

The court was very critical of the position of the Official Solicitor.  The criticisms were not limited to the issue of G giving evidence.  Pauffley J said this:

"Somehow along the way, the Official Solicitor's concentration of effort and interest would seem to have shifted to cases brought under the Mental Capacity Act. Expertise in children cases, seen by some lawyers I've no doubt as less interesting, less glamorous, less high profile has seemingly been depleted. I for one regret that situation very greatly."

This article is a public law update and not a private law update.  However, Pauffley J has again had to consider the issue of vulnerable witnesses within the sphere of a long running private case.  In Re A (A Child) (Vulnerable Witness) [2013] EWHC 1694 (Fam) the court was dealing with a set of proceedings that had been to the Supreme Court on the issue of the need for a vulnerable witness to give evidence.  The case was reported as In the matter of A (A Child) [2012] UKSC 60.  In that case Lady Hale had said:

"The Court's only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the Court to assess its reliability. It is certainly not to compound any abuse which may have been suffered."

Mrs Justice Pauffley gave leave for Communicourt to be instructed as intermediary in the proceedings in order to assist X in giving evidence.  In determining the issue, the court repeated the comments relating to the case management role of the court mentioned in Re G and E (above), though there was a distinct distancing from the description of the role being a paternalistic one.

Of interest to practitioners, when considering the guidance of the Supreme Court and the case of G and E is that the witness X did not want to give evidence and was resistant.  Just before this hearing X had written that she "cannot do this anymore." She "cannot cope with the impact upon her studies" and she is "no longer able to go on." Further, the medical evidence before the court was that  "[t]he potential for harm to X arising out of any evidence giving exercise is, the most severe end of the spectrum".

Expert evidence
In Re H-L (A Child) [2013] EWCA Civ 655 guidance was given by the President as to the test for permitting expert evidence pursuant to r25.1 FPR 2010.   The President recognised that the point left open in Re TG (Care Proceedings. Case Management. Expert Evidence) [2013] EWCA Civ 5, now had to be determined.  The issue was the change in test for the instruction of expert evidence from "reasonably required to resolve the proceedings" to whether it is "necessary to assist the court to resolve the proceedings." 

The President held that the short answer was that 'necessary' means necessary.  It means something between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable."

The factual background to the case will be important to practitioners in order to bring the abstract discussion of the meaning of "necessary" into a real situation.  H-L was born with a rare genetic disorder, spondylocostal dysostosis, which is a condition affecting the development of the bones of the back and ribs, resulting in the vertebrae being misshapen and fused.  H-L was noted to have bruising.  The working diagnosis was non-accidental injury.  H-L was placed in foster care.  The mother applied for the instruction of a) a geneticist, b) a haematologist, and c) a paediatrician to provide a general overview. 

Given that there was an issue as to whether H-L did, in fact, have spondylocostal dysostosis and  that the further issue of whether a child with such a condition could be more susceptible to bruising had only been superficially covered, the appeal was allowed.  The expert answering that question [Dr Wright] expressly stated his limited experience of such a condition.

McFarlane LJ described the issue in this way:

"Whether or not H-L is more prone to manifest bruising than a child whose system is uncomplicated by this genetic disorder would seem to be the central, if not the only, significant medical issue in the case. In the circumstances, it is unsatisfactory that the answer to that question is provided through the channel of Dr Wright, who quite properly and candidly, explains that it is a topic which is outside his own knowledge and experience.  If the mother and those acting for her wish to challenge or seek elaboration upon that opinion during the course of the trial Dr Wright is in no position to take the matter any further. That is, in my view, a situation which potentially falls short of the requirements of ECHR, Art. 6 and the overriding objective in Rule 1.1 of FPR 2010."

The appeal in relation to the haematologist and paediatrician was dismissed.

Costs order against a local authority
In HB v PB, OB and the London Borough of Croydon [2013] EWHC 1956 (Fam) Mr Justice Cobb was dealing with private proceedings in which a local authority had been ordered to file a s37 report.  The father had made allegations of the mother's behaviour which could be described as falling into the category of "fabricated illness".  During the final hearing it became clear that the social worker had not considered the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced (supplementary to Working Together to Safeguard Children (2006)). That guidance was issued by the Department for Children Schools and Families in 2008 under Section 7 of the Local Authority Social Services Act 1970.  Accordingly, local authorities are expected to comply with that guidance in carrying out their social services functions, unless local circumstances indicate exceptional reasons that justify a variation.  The guidance was also issued under Section 16 of the Children Act 2004 which requires Children's Services Authorities and each of their Board partners, in exercising their functions in relation to LSCBs, to have regard to it.

Mr Justice Cobb reviewed the (limited) authorities in relation to costs orders against non-parties and concluded that the "clear single proposition which emerges from the civil authorities is that such an order is an 'exceptional' one".

The court found:

"[T]he failures in this case are not 'minor'; they are extensive, and have had a profound effect on the conduct of the proceedings. The Local Authority has...failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its section 37 report .... or at any time in the period which followed prior to the [final] hearing." 

A costs order was made against the local authority.

In a separate judgment the court found the majority of the father's allegations to be proved.

If an inadequate s37 report is now grounds for a costs order, then both local authorities and practitioners in the field need to be aware of that as a possible remedy.

The importance of the Supreme Court's judgment in B (A Child)
Finally, the attention of practitioners is drawn to the recent decision of the Supreme Court In the matter of B (A Child) [2013] UKSC 33, which is a must-read decision covered specifically by Janet Bazley QC and Eleri Jones in Re B (A Child) – Social Engineering or Proportionate Response to Risk of Future Harm?.  The decision ranges across important areas including the likelihood of future harm, the proportionality of an approved plan for adoption in the circumstances of "likely" harm and the appropriate test for an appeal.  It is a decision rendered even more interesting because Lady Hale dissents from the main judgment of the Court and Lord Wilson is in the majority.