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Children: Public Law Update (May 2014)

John Tughan considers recent judgments in public law children cases, including the President's recent comments on the 26 week time limit and s 38(6) applications.

John Tughan, barrister, 4 Paper Buildings

John Tughan, barrister, 4 Paper Buildings

In this public law update I will consider:

Section 38(6) applications and the 26 week deadline

It will not have escaped the attention of practitioners in both the public and the private law fields that the weight of guidance, forms and paperwork generated by the new family court system as well as the Children and Families Act 2014 has increased exponentially as both reforms come into effect.  It is not the role of this article to summarise the new provisions and practitioners should consult the excellent articles elsewhere on the Family Law Week website for such information.  However, recent decisions and indications relating to these new reforms are important in gaining an understanding as to their implementation and practical effect in cases before the courts.  Such a decision is Re S (A Child) [2014] EWCC B44 (Fam) (25th March 2014) in which the President considers the issue of a s38(6) application and the interrelationship with the 26 weeks rule.  The proceedings began in October 2013 as a result of the mother's drug taking and lifestyle.  In March 2014 the mother's application for a residential assessment was renewed.  A number of expert reports had already been filed by the time this application was heard by the President and those reports noted improvements in the mother's presentation, both in terms of her commitment to and stability on methadone programme as well as her anxiety.  One of the experts concluded that the long-term nature of the drug abuse meant that many years of support and treatment would be required.  The proposed residential assessment was specialised and highly supervised.  The suggestion was that the assessment would last for 6-12 weeks.

The President reminded himself of the authorities, including Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210, [2010] 1 FLR 1290, para 10, in which Wall LJ, as he then was, said:

"I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother's right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?"

He also referred to Re T (Residential Parenting Assessment) [2011] EWCA Civ 812, [2012] 2 FLR 308, para 93, where Black LJ rejected the proposition that "a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority." She continued:

"Still less is there a principle such as that for which [counsel] contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made'."

Sir Nicholas Wall P, para 53, identified the "critical questions" as being:

"(1) does this child's welfare warrant an assessment under section 38(6) of the Act? And (2) in looking at the timetable for the child, is there evidence that this mother will be able to care adequately for the child within the child's timetable?"

The amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 were set out:

"(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b) the issues with which the examination or other assessment would assist the court,

(c) the questions which the examination or other assessment would enable the court to answer,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f) the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules."

The President held that the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is "necessary" to assist the court to resolve the proceedings.

"[N]ecessary" in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3."

As to the issue of timescales the President held that consideration of the principle set out in the interim PLO and shortly to be reinforced by section 14 of the 2014 Act was required.  Section 14 of the 2014 Act amends section 32 of the Children Act 1989 so that a timetable will be drawn up with a view to disposing of the proceedings without delay and "in any event" within 26 weeks.  That timescale may be extended "only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly."  Extensions require specific justification and are not to be routine (subsection 7).

The President said this:

"Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first 'View from the President's Chambers: The process of reform', [2013] Fam Law 548:

"My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks."

However, the President also said this, in Re B-S [2013] EWCA Civ 1146:

"We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption."


"If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

In Re S the President concluded that his approach in Re B-S was entirely compatible with the requirements of section 32.  It applied not just in the particular context under consideration in In Re B-S but more generally.

He approved the words of Pauffley J in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam):

"Justice must never be sacrificed upon the altar of speed."

Having set out the mandatory deadline ("the deadline must be met") the President goes on to envisage three different forensic contexts in which an extension to the deadline may be necessary:

(i) Cases where it is obviously not possible to conclude in 26 weeks (heavy medical evidence with a separate fact-finding hearing, FDAC type cases, international cases or cases where special measures are required for the purposes of meeting the parental disabilities are given as examples).

(ii) Cases where something unexpected happens (late allegations surfacing or the emergence of a potential family carer late in the day are given as exmaples)

(iii) Cases where litigation failure by a party makes it unjust to conclude (as in Re B-S)

In deciding whether an extension beyond 26 weeks can be authorised "necessary" means only the "imperative demands of justice – fair process – or of the child's welfare will suffice."

In Re S the extension beyond 26 weeks was not necessary.  This is because the already filed expert evidence gave, the President concluded, no "solid, evidence based" reason to believe the mother could make the necessary changes within S's timescales.  Notwithstanding the improvements in M the conclusion of the court was that S's timescales pointed to no further delay.

Re S was a case in which the alternative option for the child was a special guardianship order to members of the extended family.  Accordingly, it did not strictly fall within the Re B (A Child) [2013] UKSC 33 non-consensual adoption category.  It may be that that is why the well-known dicta from the Supreme Court (only approve the care plan as a last resort, where nothing else will do) was not referred to in Re S.  However, whilst a special guardianship order is a different category of permanence from an adoption order, permanence it is. 

The ability of a non-parent to apply for leave to oppose an adoption order

It may only be the anecdotal experience of this practitioner but it seems as though applications for leave to oppose adoption orders, as well as for permission to apply to revoke placement orders, are on the increase.  Of course, this may be as a result of the Re B-S decision which lowered the hurdle to such applications, at least in the discretionary stage of the legal test.  In Re G (A Child) [2014] EWCA Civ 432 the court was deciding an application by a non-parent who had cared for a child, until his removal under care and placement orders, for leave to oppose adoption.   McFarlane LJ gave judgment and decided that a person who is not a parent could apply for leave to apply for a residence order by virtue of s29 ACA 2002 pursuant to the Part 18 FPR procedure.  In such an application the welfare of the child was not paramount.  Although change of circumstances was not part of the test in such an application, such considerations were of great relevance to the application.

The weight to be attached to ABE interviews

In R (A Child) [2014] EWCA Civ 270 the Court of Appeal was considering an appeal against findings of fact and the weight to be attached to ABE interviews.  The mother made an allegation of sexual abuse against the father to the school.  The child was taken into police protection and interviewed the same day. That interview was not audio or video recorded, because it was intended to be a discussion preliminary to an ABE interview, but there was a note of it prepared by a social worker. The father denied the allegations and the mother retracted them and alleged a professional conspiracy.  The court made a finding of fact against the father that he had inappropriately touched the child but not for the purposes of sexual gratification.  The court also found that the mother failed to protect the child.

Ryder LJ took pains to limit his comments on ABE interviews and reminded himself that each case was fact-specific.  Examples of cases where the interview was so flawed as to provide little evidential weight were TW v A City Council [2011] EWCA Civ 17, [2011] 1 FLR 159 and, in contrast, Re: H (A Child) Number 2 [2014] EWCA Civ 232.  In this case, however, the source of the allegations was not limited to the interview.  If it were, the flaws would be fatal to the findings.  But the ABE guidance was "not mandatory in the sense that a breach renders the evidence inadmissible or so fatally compromised that it is unreliable and should be given no weight. Each case is fact sensitive."

Findings of fact in cases involving equivocal medical evidence

Re P (Findings of Fact)
[2014] EWCA Civ 89 was a case involving equivocal medical evidence on the issue of whether the child had been non-accidentally injured.  Although it was a private case, the principles of evaluation of such evidence are, of course, applicable to public law applications involving such issues.  The medical evidence was equivocal in the sense that the fit suffered by the child could have had a number of causes.  The causes were consistent with both traumatic and non-traumatic events.  However, the boyfriend had lied about events surrounding the injuries and, after giving herself a Lucas direction, the Recorder made findings adverse to him.

Black LJ rejected the submission that the judge had reversed the burden of proof:

"In an appropriate case, findings of non-accidental injury can be made even though the medical evidence does not establish that there has been such an injury. The court has to consider the totality of the evidence as the judge did here and to make findings on the balance of probability. I do not wish to assert that a certain type of evidence (for example, lies) can or cannot, in principle, be sufficient to establish that a non-accidental injury has occurred or that any other allegation in family proceedings is made out. So much depends upon the nature and quality of the evidence as a whole."

However, in this case, it was not permissible for the judge to have concluded that the non-medical evidence, which was not particularly robust in nature, pointed inexorably to one or other medical conclusion.