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Children Public Law Update (November 2014)

John Tughan, barrister, of 4 Paper Buildings reviews recent important judgments in public law children cases.

John Tughan, barrister, 4 Paper Buildings

In this update I will consider three areas:

(i) a recent decision of the Court of Appeal in relation to the "change of circumstances" test in applications for permission to apply to revoke placement orders;

(ii) the alignment of step-parent adoption applications with the recent jurisprudence of Re B and Re B-S

(iii) an update on recent authorities relating to press reporting restriction orders

Leave to revoke a placement order
In Re T (Children) [2014] EWCA Civ 1369 (21.10.14) the Court of Appeal was concerned with an appeal from a decision refusing a Father permission to apply to revoke placement orders in relation to his sons.  Practitioners will know that this has been a busy area for judicial comment and this case adds further to the re-casting of the test that follows the B-S decision.

In the care proceedings, accusations and counter-accusations were made by F and the children's mother (M). They had separated and reconciled several times and had failed to adhere to contracts of expectations regarding their conduct.  The children were placed with their paternal grandparents until the grandmother felt she could no longer cope. F gave permission for the children to be accommodated by the local authority. Placement orders were made for T. The threshold criteria were not disputed. The local authority accepted that the children were not said to have suffered significant harm; the case was decided on the basis of a risk of emotional harm due to F and M's long-standing abusive relationship.

On F's application for permission to revoke the placement order he claimed that there had been a change in circumstances, namely that he and M had divorced and he had been in a relationship with another woman for two months.  The other change in circumstance that was argued was the deterioration in the behaviour and distress being exhibited by the two younger boys and the distress and strength of feeling that the two older boys had about their contact with their younger brothers being terminated to facilitate placement with an adoptive family.

The judge found that F's assertion of a change in his circumstances was unproven and that there had been no material change in circumstances. F appealed.

Russell J gave the lead Judgment in the Court of Appeal and, in allowing the appeal re-stated the two stage test for such applications, citing B-S

"a.  an application for leave involves a two-stage process;

b.  first of all, the court has to be satisfied on the facts of the case that there has been a sufficient change in circumstances 'of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation'

c.  the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;

d.  whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;

e.  if there is no change in circumstances, that is the end of the matter, and the application fails;"

During the leave to appeal process F denied and then admitted that he could be the Father of the unborn child of the Mother of the children, who he had divorced.

The Court of Appeal held that the Judge was wrong to conclude that there had been no change of circumstances.  The bar must not be set too high to such applications:

"The facts form the basis of where the bar is set. The height of the test or bar which a particular applicant must climb over must be considered by the judge with respect to the factual background of the case as a whole and will vary from case to case. The relevance of the change, referred to by Wall LJ at paragraph 32 reproduced above, while being in part a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application, imports an element of judicial evaluation. The judicial consideration of the relevance or otherwise of the change in circumstance, and therefore the height of the test, in a particular case must be measured against the facts of that particular case when the placement order was made."

The Judge failed to consider the second "change of circumstances" argument by F, that the behaviour of the boys had deteriorated since the making of the orders.  That could only be done by comparing their behaviour then and now.
The sibling relationships between the two boys and their elder siblings were also important:

"The right of children to have contact with each other has been considered by this court in Re H (Children) [2010] EWCA Civ 1200 when an appeal by an elder sister for indirect contact was allowed. Lord Justice Thorpe held that the judge at first instance had insufficiently weighed the rights of the children to a wider family life. The rights of the older siblings subsist after the placement orders were made and are not extinguished by the making of such orders. The long-term affects of enforced separation from loved siblings and the importance of inter-sibling relationships have often taken second place to the perceived need to protect adoptive placements. In this case it is accepted by all that the three younger boys are close and have a positive and apparently lasting and important relationship....

...decisions of the Family Court should be proportionate in their outcome for all siblings and in this case there is evidence that separation will cause long term distress and possible harm contained in the accepted evidence of the social worker. Thus when considering whether there has been a change in circumstances the effects on all the siblings is something that should properly be kept in mind."

The Judge had also erred in giving primacy to F's circumstances as opposed to the circumstances of the children.

This decision is important.  The Court of Appeal are setting out guidance on the first stage of the test, namely the change of circumstances that is required before leave can be granted.  Russell J noted the paucity of such guidance in this area and it is to be noted that in this case the "bar" was set lower as a result of the fact that the original threshold criteria related to a risk of harm as opposed to actual harm suffered.

Step-parent adoptions
In giving the lead Judgment in P (A Child) [2014] EWCA Civ 1174 McFarlane LJ noted that this was an opportunity to bring applications for adoption orders by step-parents into line with the Re B / Re B-S line of authority. The Court allowed the appeal against the refusal of the adoption order.

McFarlane LJ aligned the approach to such applications with the recent jurisprudence of Re B / Re B-S in this way:

46.  In an adoption application the key to the approach both to evaluating the needs of a child's welfare throughout his or her life and to dispensing with parental consent is proportionality. The strong statements made by the Justices of the Supreme Court in Re B and taken up by judges of the Court of Appeal in subsequent decisions to the effect that adoption will be justified only where 'nothing else will do' are made in the context of an adoption being imposed upon a family against the wishes of the child's parents and where the adoption will totally remove the child from any future contact with, or legal relationship with, any of his natural relatives. Although the statutory provisions applicable to such an adoption (in particular ACA 2002, s 1 regarding welfare and s 52 regarding consent) apply in precisely the same terms to a step-parent adoption, the manner in which those provisions fall to be applied may differ and will depend upon the facts of each case and the judicial assessment of proportionality.

47.  By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child's welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when 'nothing else will do', whereas the latter option, which involves a lower degree of interference, may be more readily justified.

48.  Where an adoption application is made by a step-parent, the approach of the ECtHR in Söderbäck v Sweden should be applied according to the facts of each case. In doing so the following central points from the judgment in Söderbäck are likely to be important:

a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent ['Parent B'], and thereby make it more likely that adoption is a proportionate measure are:

i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;

ii) Where Parent B has had only infrequent or no contact with the child;

iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which 'de facto' family ties have existed for a significant period."

Press reporting
Regular readers of this quarterly update will remember the case of Re E [2014] EWHC 6, which was covered in an earlier article.  That was the decision of the President that ranged over a number of important issues including Brussels II(R), the Vienna Convention and the granting of press reporting restrictions orders.  The President in that case referred to two of his earlier decisions Re J (A Child) [2013] EWHC 2694 (Fam) and in Re P (A Child) [2013] EWHC 4048 (Fam).   Those earlier decisions re-affirmed and helpfully summarised the legal considerations to be applied on applications relating to reporting restrictions orders and bear a review.  While affirming well-established principles those cases did re-emphasise the need for the transparency of public debate and, in the estimation of this writer, re-calibrated the issues that the court faced on such applications.

Two recent decisions have dealt with a further issue on such applications.  That issue is the naming of a person involved in the proceedings so as to allow the full story to be told in the press.

In Public Guardian v JM [2014] EWCOP 7 Munby P heard an application for permission to publish the name of the person (JM) who had been discharged as holding the lasting power of attorney.  JM had been held to have transferred sums of money to himself and had breached his fiduciary duties.  The Court emphasised that it was not sitting in Judgment on the complaints by JM of his unfair treatment at the hands of the press:

"....The fact is that I am not, I cannot be, concerned with any of these matters. If JM is being defamed or treated unfairly by a newspaper he has remedies elsewhere. But they are not matters for this court. I venture to repeat what I said in Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam)  para 26:

"So far as concerns the relationship between the media and the court I … merely repeat … , so as to emphasise, three key principles (Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam),.... First, that "It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish". Second, that "Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is … not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar". Third, that "It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory … If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction."

Munby P reminded himself of the words of Lord Rodger of Earlsferry JSC in giving the judgment of the Supreme Court, in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] 2 AC 697, paras 63-64

"63  What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed … This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64  Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that

"from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer."

In Press Association v Newcastle upon Tyne Hospitals Foundation Trust [2014] EWCOP 6 Peter Jackson J was considering whether the Court's power to preserve anonymity survived death of the person whose anonymity was preserved.  The proceedings before the Court had involved the application to withhold blood transfusions from a mentally ill patient who was a Jehovah's Witness.   The Doctors concluded that the patient had the capacity to refuse transfusion.  The Court, in granting the orders for the withholding of treatment, also made reporting restriction orders withholding the name of the patient.  The court held that there was the power to preserve anonymity post mortem but declined to do so.  Part of the reasoning of the court was that

"There is a proper interest in the name of a person who dies being a matter of public record, whether or not there is to be an inquest. The right to privacy is only likely to outweigh this consideration in very special circumstances. Mr Dodd also makes the important point that there is a public interest in the media being able to report LM's unusual and fateful decision in an engaging manner."

Notwithstanding that neither of these cases relate to public law (children) issues they are important further evidence of the shift in judicial thinking towards transparency and openness in our courts.  Both cases, in their own ways, limit the role and function of the Court.  Munby P emphasised the importance of the principles under discussion to the family courts.