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Children: Public Law Update (March 2015)

John Tughan QC of 4 Paper Buildings reviews recent judgments of particular importance to all practitioners in public children law.

John Tughan QC, 4 Paper Buildings

John Tughan QC, 4 Paper Buildings

In this update I will consider:

The B-S line of authority

In CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479 the sole issue on appeal was described by Ryder LJ as whether a court can make a placement order when the local authority's care plan describes what has come to be known as a 'dual track' or 'twin track' approach.   The appellant's submission was that as a matter of law a dual search does not reflect a circumstance where 'nothing else will do' because long term fostering will do, as the fallback plan.  As against that there were strong welfare arguments for allowing concurrent planning for children and such a course was well established in the authorities.  The answer was that

"Re B and Re B-S [do not] re-draw the statutory landscape.  The statutory test has not changed. ...It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts.  The test remains untouched but the court's approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision.  That can be seen in graphic form in the comments of the President in Re B-S at [30]...."

In the reckoning of the Court of Appeal neither Re B nor Re B-S created a new test or a new presumption.

" 'Nothing else will do' involves a process of deductive reasoning.  It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child.  It is not a standard of proof.   It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child."

In a pair of decisions last year (namely Re D (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1480 and Re L (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1481) Black LJ considered how, at the second stage of the process in an application for leave to oppose an adoption order, the defects in one proposal for a child might give another proposal more weight.  In Re L (Leave to Oppose Making of an Adoption Order) [2013] EWCA Civ 1481 practitioners will remember that the appeal was allowed on the basis that the court at first instance had given inappropriate weight to the fact of the separation of the prospective adopters.

This need to look at the circumstances of the child when considering the two stage tests in applications either to revoke a placement order or for leave to oppose an adoption order was further emphasised by the Court of Appeal in G (A Child) [2015] EWCA Civ 119, per Macur LJ:

"It seems to me that the issue raised in the third ground is explicitly determined by Wall LJ in Re P.  The "change in circumstances" specified in section 24(3) of the 2002 Act is not confined to the parent's own circumstances.  Depending upon the facts of the case, the child/ren's circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion.  I would regard it as unlikely for there to be many situations where the change in the child's circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren's welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren's circumstances, good or bad,  if it is charged with evaluating the sufficiency of the nature and degree of the parent's change of circumstances."

Fresh evidence on appeal

In G (A Child) the court was considering the admission of fresh evidence on an appeal.  The fresh evidence was a report from Dr Waney Squier in relation to the physical injuries found to have been caused to a child.  The history of Dr Squier's involvement with various judgments of various family courts was rehearsed but the reasoning behind the refusal to admit fresh evidence was summarised in this way:

"In particular I agree with my Lord's two-part analysis of Dr Squier's report.  The first part was of no weight, while the second part amounted to no more than a different view from that of the jointly instructed experts who were unchallenged at trial, not based on any material which post-dated it.  It cannot be a proper basis for the admission of fresh evidence that a party has, since the trial, merely found an expert with a different view."

The absence of legal aid

The line of authority relating to the proliferation of unrepresented litigants before the courts makes for a fascinating, some might say constitutional, issue. 

In D (A Child)  [2014] EWFC 39 Munby P distilled the issue down to whether D should live with his parents or be adopted outside the family.   An issue that "could hardly be of more profound significance for both D and his parents."  However, the court also had to grapple with the "profoundly disturbing fact" that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation " in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation."

By the time of the decision of the court on the 31st October 2014 the care order had been confirmed at an earlier hearing and the applications before the court were the father's application for discharge of the care order and the local authority's application for a placement order.

Munby P rightly (if I may say so) praised the teams of representatives that were before him and acting on a pro bono basis.

The role of the Family Court was considered.  It was not to step into the shoes of the administrative court or to pass judgment on the arrangements approved by Parliament.  It was, emphatically, "to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention".

Citing an earlier authority of  Q v Q [2014] EWFC 7, the President identified the possible sources of public funds in order to secure the representation of the parents in such circumstances as the local authority, the court itself or the Legal Aid Agency (via the party who was in receipt of public funds).

In Re D (A Child) (No 2) [2015] EWFC 2 the President, in the same proceedings, was considering the funding situation again.  The chronology (annexed to the judgment) of legal effort to obtain a resolution of the issues makes for depressing reading. However, the legal aid issues had fallen away by the time of this hearing but legal aid had not yet been confirmed for the final hearing.  The President stated that he would

"view with the very gravest concern any suggestion that they should be denied legal aid on 'merits' grounds.   Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority's application without proper representation....

This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane."

On the question of which of the three possible sources of public funds should meet the bill, HHJ Clifford Bellamy (sitting as a Deputy High Court Judge) answered by ordering HMCTS to pay in Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1.  It should be noted that this was a private law case.

How not to conduct care proceedings

In Re A (A Child) [2015] EWFC 11 Munby P described three fundamental principles that are too often overlooked and described the cases before him as  "an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case".

The first fundamental principle is "the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation."  If the case is challenged the local authority must adduce proper evidence to establish what it seeks to prove.  Hearsay is admissible but

 "a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it....

...It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority's concern about something. If the 'thing' is put in issue, the local authority must both prove the 'thing' and establish that it has the significance attributed to it by the local authority."

The second fundamental principle relates to the formulation of the threshold and proposed findings of fact.  The form of allegation that X "appears to have" lied or colluded, that various people have "stated" or "reported" things, and that "there is an allegation" is wrong and should never be used.   It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading, and well understood, between an assertion of fact and the evidence needed to prove the assertion.  

"Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations." 

Equally fundamental is the need to link the facts to why the child has suffered or is likely to suffer significant harm.

The third fundamental point is the reminder of the "wise and powerful words" of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

"society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."

The President continued:

"15. That approach was endorsed by the Supreme Court in In re B. There are two passages in the judgments of the Justices which develop the point and to which I need to draw particular attention. The first is in the judgment of Lord Wilson of Culworth JSC where he said (para 28):

[Counsel] seeks to develop Hedley J's point. He submits that:

'many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or "model" them in their own lives but those children could not be removed for those reasons.'

I agree with [counsel]'s submission".

The other is the observation of Baroness Hale of Richmond JSC (para 143):

"We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs."

The President respectfully agreed with all of that and went on:

"It follows that I also agree with what His Honour Judge Jack said in North East Lincolnshire Council v G & L [2014] EWFC B192, a judgment that attracted some attention even whilst I was hearing this case:

"I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."

There is a powerful message in these judgments which needs always to be borne in mind by local authorities, by social workers, by children's guardians and by family judges."


In Northamptonshire County Council v AS and Others [2015] EWHC 199 Keehan J was considering the delays and defaults within local authority planning for a child.  DS was placed (aged 15 days of age) with foster carers pursuant to s20 Children Act 1989.  Four months later the authority decided to apply for a care order.  That application was not issued for a further five and a half months.  Thereafter the local authority was found to have egregiously failed to assess extended family members (in Latvia and Spain), properly to plan care for DS or to comply with court orders for the filing of evidence.
Keehan J, in dealing with the response of the Director of Social Services, held that:

"I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby....DS has been allocated no less than eight different social workers."

In reminding himself of relevant authority in relation to such failures, the judge cited the President's views in Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177:

"That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders...

The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay's order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority."

The mother issued proceedings against the local authority claiming damages for various alleged breaches of her Article 6 and Article 8 Convention rights.  The local authority agreed to pay damages (£12,000 to DS, £4,000 to the mother and £1000 to the grandparents) and Keehan J approved the amounts.

For an article concerning claims for damages where there have been human rights breaches, written after the judgment in this case, please click here.

Inherent jurisdiction injunctions to prevent child sexual exploitation

In Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam) Keehan J was considering the use of the inherent jurisdiction in a case involving the established sexual exploitation of a child (AB).  There is insufficient space here to set out the terms of the order as contained in the judgment of the Court but there were extensive orders protecting AB from the Defendants as well as an injunction that the Defendant(s) shall not:

"(e) approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.....

(i) cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger....."

Keehan J considered that line of authority, culminating in Re J (A Child) [2013] EWHC 2694 (Fam), that established that the court will not consider injunctive orders that cannot be enforced.  Having found that the defendants exploited AB, the court concluded that there was a real risk that others would also be exploited.  Accordingly, paragraphs (e) and (i) of the injunction order were proportionate and enforceable.

For an article concentrating on the issues in the Birmingham case, please click here.