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Lawyers, Social Workers and the Proportionality Test

David Bedingfield, barrister of 4 Paper Buildings, considers the President’s judgment in A (A Child) [2015] EWFC 11 and the lessons to be derived by practitioners.

David Bedingfield, barrister, 4 Paper Buildings

David Bedingfield, barrister, 4 Paper Buildings 

The President of the Family Division has sent yet another emphatic message to the Family Bar: local authorities still do not understand the principles underlying Part IV of the Children Act 1989. In the case of In the Matter of A (A Child) [2015] EWFC 11, Munby P was sitting as a trial judge, hearing an application for care and placement orders made by Darlington County Council. To say that Munby P was not best pleased with the local authority's case is just this side of saying the Titanic had a few difficulties on its maiden voyage.

The case involves a factual background that will be familiar to all in the family justice system. The child's father is, sadly, not an individual capable of displaying a great amount of intellect or social skills. He was born in 1989. He was brought up by his mother (his father had left the family home early on), and it is right that the father did not have an easy childhood. He now regularly smokes cannabis. He sometimes drinks to excess. He has a difficult relationship with his step-father and his mother, and police have had occasion to visit the family home several times in the past when arguments appeared to get out of hand.

The child's father was also not seen to be someone able to engage in any long-term relationships with women. He at the time of the proceedings had had three relationships. The first, which began in 2008, was with a woman the court referred to as "H." They had two children, girls born in 2009 and 2012. They separated on Christmas Day 2012. The father issued an application for contact in March 2013. H issued an application for a prohibited steps order in March 2014. Various orders had been made, but the proceedings had not reached a conclusion. There had been no findings of fact regarding various allegations between the parties in that case.

The father's second partner was the mother of A, the child subject to these care proceedings. The relationship began in early 2013. Shortly after the relationship began, the mother found herself  pregnant with the father's child. The relationship ended shortly thereafter.

In the summer of 2013, prior to the child's birth, the mother was imprisoned for several offences. One of those offences was a sexual offence relating to a child. The father of A  always maintained to social workers that he had not known that the mother was charged with a sexual offence, even though he accepted he knew that she was charged with other, non-sexual offences. Social workers did not believe him.

The father then began another relationship. This relationship (with a woman referred to in the judgment as "J") began in Autumn, 2013, and ended (according to the father) some five months later. This relationship was also tempestuous and difficult. The local authority believed the father continued with this relationship after having assured social workers that it had ended.

The child subject to these proceedings was born while mother was in prison. On 18 September 2013, prison authorities told social services that the mother was pregnant. One week later, social services held a pre-birth conference. Some five weeks later, on 30 October 2013, the social worker (not named by Munby P, but referred to as SW1) began an assessment of the father. She had two sessions with him on his own, and a session  on 17 December, 2013 with father, his mother and his step-father. There was also one telephone conversation between the father and SW1.

It is right to say that SW1 did not gain a good impression of the father as a person.  The social worker noted that the father's behaviour was at times "immoral." She simply did not believe the father when he told her he had not known the mother was charged with sexual offences. In her report, SW1 said that it was "evidently not true" that the father had no knowledge of the offences, but as Munby P found, the social worker really had no reasonable basis to believe that this was "evidently not true," save for the fact she didn't  much like the father and therefore assumed the worst, no matter what the evidence might have shown her.

The child was born on 11 January 2014. The local authority after this negative preliminary assessment of the father sought agreement from the mother for a s.20 accommodation of the child. The mother (in prison) agreed to the accommodation. It took the local authority another 8 months to get around to filing an application for a public law order.

During this time there apparently was another assessment of the father, but as Munby P noted in his judgment the assessment was not dated or signed, and it was unclear precisely how the assessment had been conducted. In any event, it was negative, primarily because of the assessor's view that the father would not work with the local authority, would likely continue his chaotic lifestyle, and that it would not be in the child's best interests to live with his father.

The first social worker left the employ of the local authority during the pendency of the proceedings. She was replaced by a social worker identified as SW2. This social worker met with the father "to update the assessments."  The meeting lasted, according to the social worker, for 75-80 minutes. No formal updating assessment was filed. SW2 gave evidence, however, and stated that she continued to have the same concerns as the first social worker.

What were those concerns? Munby P was scathing in his assessment of the local authority's case. There were four "concerns" listed in the threshold document. (In other words, these "facts," if proved, would show that this father would likely cause the child significant harm in the future.)

1)  He minimises the risks he and his partners present to A;

2)  He "has numerous convictions", and  "has engaged in physical altercations with family members in recent times" and "does not have insight into the risks to a child where physical violence occurs";

3) He "has continued in a relationship with J (his third partner), despite being aware of the risks posed by her and their continued relationship" and "has therefore prioritized his needs over and above those of A";

4) He "has 2 older children who are cared for permanently" by others, and ". . . there have been allegations made that the children have suffered injuries [bruising] whilst in [his] care".

Obviously only 2 and 4 above might actually show legitimate concerns regarding whether father might significantly harm this child. But both 2 and 4, upon closer inspection, fall away. The father had not had "numerous convictions." He had been cautioned twice, and the police had responded to call outs at the family home,  primarily because of fights with other family members. And of course there had been no fact-findings made against father with regard to the allegations made regarding his first two children, and the father was seeking contact with them in other proceedings.

Munby P went on to examine why the local authority believed the child's best interests required her to be placed outside the care of her father. In particular, the Court was concerned that the local authority social worker repeatedly made "findings" that the father had lied to her about incidents that had occurred in the father's past—incidents that might have little to do with whether the father could adequately care for the child. (For example, the father told the social worker he had been present when two friends of his tragically died in a railway accident. The police told the social worker that this likely was not true—that the father had not been present. The social worker therefore concluded that the father was lying, and that this should be seen by the court as a reason for the child not to be placed in the care of the father.) 

The social workers were also concerned that the father, when he was 17, had been cautioned after admitting having sex with a 13-year-old. The father stated that he had not known she was 13, that she had been purchasing alcohol when he met her at the local football club's grounds, and that she did not appear to be 13. Social workers repeatedly stated in their assessment that the father "minimised" the importance of this event. SW1 in her statement said that the father's behaviour was "immoral." Munby P's response to those contentions deserves setting out in full:

"60. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was "immoral"? The city fathers of Darlington and Darlington's Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the "current risk he poses" to "vulnerable young women"? What has that got to do with care proceedings in relation to the father's one year old son? It is not suggested that there is any risk of the father abusing A. The social worker's analysis is incoherent.

61. The schedule of findings asserts (W1) that the father "minimises the significance of these events". Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father's trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society's values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.

62. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour
towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.

63. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders."

The local authority were also concerned that the father had joined the English Defence League. The father contended he had not realised the extent of the League's racist views, and had not appreciated how violent the League's members were, and he stated that he had left the group after a short time. The LA simply refused to believe him. The social worker set out in her report her view of the EDL—that it was a racist organisation that engaged in violent protests. Whatever the court's findings with regard to the timing of the  father's discovery of the EDL's racist views, it would be a reasonable inference to draw from the evidence that the father would not likely support the pro-European wing of the Labour Party.

Again, Munby P posed the question: How will this likely cause the child significant harm? Why is this a reason to remove the child permanently from her father? Munby P put it like this:

"71. . . The mere fact, (if fact it be), that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly "immoral" aspects of the father's behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority's case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning."

The remainder of the concerns of the local authority primarily revolved around the local authority's view that the father had lied to them about various matters, including whether he was having a relationship with his third partner. (He eventually accepted that he was having a relationship.) The local authority contended that these lies meant that this child should be placed for adoption.

So in the end, how should one characterise the local authority's case? In other words, who is this father? Why should the local authority be given what it seeks—a care order and a placement order?

Munby P put it like this: 1) the father is immature; he acts irresponsibly at times; 2) the father has at times played down or minimised matters which were properly of concern to the local authority; 3)  the father lacks some insight into the child's long-term needs; 4) the father at times drinks to excess, smokes cannabis, and engages in loud (and sometimes physical) confrontations with his mother and stepfather.

Munby P had no difficulty in finding that this did not mean it was "likely in the sense of a possibility that could not be ignored" that the father would cause the child significant harm in the future.  And while the father clearly has some limitations, they were not the sort of problems that meant that "only adoption would do." Munby P said:

"I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father's care."

Munby P had numerous criticisms of the local authority, criticisms he has often levelled against other local authorities in the past: 1) The local authority should have brought proceedings immediately, rather than rely on s.20 accommodation; 2) the local authority's assessment of the father was both incoherent and began from a perspective that required the father to be far better than just a "good enough parent"; 3) and, perhaps most importantly, the local authority failed to understand that these are legal proceedings with the requirement that courts using the appropriate legal standards must first make findings on admissible evidence before acceding to the local authority's wishes. 

Prior to analysing the facts of the case, the President set out the appropriate legal tests. All the usual principles are here: It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have the child adopted, to establish facts that show  "nothing else will do."1  

But the President also emphasized one other aspect of the legal test: proportionality. He cited Macur LJ's formulation, set out in Re Y (A Child) [2013] EWCA Civ 1337, para 7, in a judgment agreed by both Arden and Ryder LJJ:

"(3) In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority. Relevant evidence in this respect is not and should not be restricted to that supportive of the local authority's preferred outcome.

(4) I regret that quite apart from a lamentable lack of evidence which would have enabled the judge to conduct a rigorous analysis of options objectively compliant with the twins' Convention rights, whether favoured by the local authority and/or Children's Guardian or not.  I consider the case appears to have been hijacked by the issue of the mother's dishonesty. Much of the local authority's evidence is devoted to it. The Children's Guardian adopts much the same perspective. It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother's particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance." (emphasis added by the Court).

It is wrong, no doubt, to read too much into one case, even if this is a judgment by the President of the Division. But I suggest that the President's emphasis on the proportionality test, and the President's criticism of the local authority's legal advisors regarding the performance of the social workers, reveals an ongoing dilemma for local authority legal advisors.  Is it the social worker or the lawyer who decides whether the parent's deficiencies as a person and a parent are so grave that the child's welfare requires removal from that parent's care? Who decides whether that is a proportionate exercise of state power and is a "necessary" limitation of the parent's and child's rights to family life? 

The easy answer is to say it is a joint decision, reached between social workers and legal advisors, but easy answers do not help in the hard case. Lawyers advising local authorities who seek placement orders often approach the case in a Wednesbury2  manner: Is the social worker's decision within the range of reasonable decisions available to the authority on the evidence of the case? Is the local authority's case "unreasonable" in the sense used by the Court of Appeal in Wednesbury? If not, then the legal advisors ordinarily will put the case to the trial judge and let the judge decide whether the decision to remove is a proportionate use of state power. After all, the lawyer is not a social worker. The lawyer was not the one conducting the assessments of mother and father. The lawyer is not an expert in child care; he or she is an expert (one hopes) in the law that governs child care.

I suggest that what Munby P and the Court of Appeal are telling local authorities is that this grey area should be reduced, that lawyers should make the final decision about proportionality rather than social workers. Proportionality, after all,  is a legal test.

Hedley J and others3 have often sought to remind  lawyers that Part IV of the Children Act 1989 is not a license for social engineering. But in fact it is: When a court removes a child from his parents who have abused that child, that is a form of social engineering. The question, however, is where one draws the line. Munby P is telling local authorities that the line they are drawing must not exclude the imperfect, the credulous, the ignorant parent; instead, only those parents who cause or are likely to cause their children significant harm must be excluded. 

The debate about which parents fit that description will no doubt continue in the law reports. It is not an easy question.

See In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. See also Re R (A Child) [2014] EWCA Civ 1625. See Baroness Hale of Richmond's now mandatory test, set out in  Re B, at  para 198: "The test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do." See also  Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134: "family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained." See Inre C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31.
[2] Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 QB 223.
[3] The principles are worth setting out in full:: "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." See Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50. That approach was endorsed by the Supreme Court in In re B.  See in particular the judgment of Lord Wilson of Culworth JSC: (at 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". See also 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."